How to Read and Evaluate a Custody Evaluation

By Victoria Bender

The famous New Yorker cartoon was on December 8, 1928, with a drawing by Carl Rose and text by E. B. White:

Receiving a bad custody evaluation is like not liking the food you ordered at a fancy restaurant. What seemed like a good choice at the time turns into a bad idea in retrospect. Even worse, is when you didn’t want the evaluation in the first place but are now presented with a report that does nothing but leave a bad taste in your mouth. It may not be as it appears, and you don’t necessarily have to swallow it.

Regardless of the length of time that it has taken to prepare a custody evaluation, at some point in time, the evaluation will be completed and the report will be issued. If you are like most people, you will glance at the cover and make your way to the end where it states, “Conclusions” and, after reading the ultimate statement, which then forms in your mind the initial belief that the report will be either brilliant or sub par, you turn back to the beginning and settle down for a read. Whether the report is broccoli or spinach as shown by the famous New Yorker cartoon, depends on how reliable the report is.

A. When to Get a Second Evaluation and When Not To Get One

Mental health professionals, especially clinical psychologists, consider themselves scientists, and many have the credentials to prove it. They have set up thousands of tests which measure actions and behaviors on a repeatable, consistent basis. The purpose of any scientific inquiry is to form a hypothesis and test the validity of that hypothesis. However, the purpose of a custody evaluation is to help the trier of fact make a decision as to what custody arrangement would be in the best interest of the child. While tests can measure many things, there has yet to be a test that will tell if a person will be a good parent.

“Perhaps the greatest impediment to the mental health expert’s ability to provide fair, competent, and appropriate custody recommendations is the absence of a sound scientific body of research in this area….For example, there is an absence of strong scientific evidence regarding precise parenting characteristics that guarantee ‘good parenting.’ Similarly, we lack sound research and data regarding the effects on the future of a child who’s been placed with the ‘wrong’ parent.”

Ira Daniel Turkat, “Questioning the Mental Health Expert’s Custody Report”, American Journal of Family Law Vol 7, 175-179 (1993) Dr. Turkat’s article is over 10 years old, however, there is yet to be any research which substantiates a scientific basis for selecting the qualities of a good parent. The custody evaluators themselves note this lack of scientific base. “The CCE [child custody evaluation] field has a long way to go towards measuring “parental capacity”(Grisso 2003), but there is an emerging recognition among scholars and researchers who write about CCE that the parent-child relationship should be assessed.”

H.D. Kirkpatrick, “A Floor Not a Ceiling: Beyond Guidelines-An Argument for Minimum Standards of Practice in Conducting Child Custody and Visitation Evaluations,” Journal of Child Custody Vol. 1(1) 2004.

Since the child custody evaluation is not an assessment of a party’s parenting qualities or abilities, what the report can or does measure and how the evaluation was conducted is of primary importance. If the tests were invalid or not performed properly or if there was some bias or subjective conclusions reached, then the conclusions are scientifically not valid. Dr. Kirkpatrick’s article suggests 26 “Minimum Practice Standards for Custody Evaluations”. The cited criteria are based on previously published standards and suggestions from organizations and people in the field.

While the reader of a custody evaluation report cannot possibly know if the criteria listed were followed, there are certain criteria which should be readily apparent.

Was the evaluator court appointed, appointed by consent, or hired by one side? Can an expert hired by one side be unbiased? More importantly, does the report seem to indicate any apparent bias?
Was there a specific referral question the evaluator was asked to answer that is within the evaluator’s area of expertise? Since it has already been shown that there is no scientific criteria to determine whether someone will be a good parent, any conclusion with such an assertion would be suspect. Similarly, if the question posed is not within the area of expertise of the evaluator, the evaluator is not an “expert” and the report should not be allowed into evidence.
Was the examination “forensic” or “therapeutic” in nature? Did the evaluator use multiple avenues of data collection or was the information provided by each party accepted as true?
Was the report based only on the empirical data, obtained from testing or were there observations of the parent/child interaction and interviews with persons who had knowledge of that relationship?
Conversely, was the evaluation void of any “hard” testing and based solely on observation and anecdote?
Did the evaluator spend comparable amounts of time with each party and checking each party’s collateral sources? Did the report show that one party had greater access or more access during a certain period of the evaluation (i.e. one party had his/her meetings first and “set up the scene” before the other party had any input, or only one party had access to the child or children) than the other?
Did the evaluation frame its responses in a manner indicating bias or favoritism?
Were the cultural and ethnic consideration of each party respected by and considered in the evaluation?
Did information provided by a party appear to be missing or discounted by the evaluator? Was a collateral source misquoted, misinterpreted or given undue reliance?

10. Were there any health or emotional issues which could have affected the evaluation but which were not a regular feature of the family situation?

Not every custody report has to be identical in order and organization to every other report, however, each custody report should consist of certain information including:

The court order or statement as to for whom the evaluation was conducted and the questions to be addressed
The information reviewed and people contacted
The dates and amount of time spent with each party and child
A list of any tests conducted and the results thereof
A history of each party and child with appropriate sources noted.
Observations
Summaries of Interviews
Areas of concern and the reasons therefor
Strengths and weaknesses of each party and reasons for such statements
Conclusions

The first thing you need to do is read the report. A well balanced report should give an objective report on all parties involved and be able to back up statements with data or observations. By the time you finish the report, you probably found some unflattering statements. Do the statements in the report sound plausible when you consider yourself objectively or you reflect on what others have told you about yourself? While it is quite true that even though people at their worst during a custody action, most people will try to put their best foot forward to a custody evaluator. It is equally true that, even when you have presented yourself truthfully, it is only your version of the truth. Read the report with an open mind. If the report appears balanced and well documented, move on to the next phase of looking for the strengths and weaknesses suggested by the report. Even if the conclusion is not in your favor, there will undoubtedly be some positive statements about you in the report. Even if it is only that you showed up on time, punctuality can be an asset!

If you believe that the report is fairly accurate, then your job is to help your attorney use the report to prepare for court or negotiations. If you believe that the report has serious flaws, however, there are several avenues open to you.

Can you obtain a second evaluation or second “opinion”? Most forensic psychologists will gently correct you if you suggest getting a second opinion. “We should carefully avoid using the term “second opinion” unless we are describing a second evaluation of equal, greater, or different scope than the first evaluation, in which the second examiner obtains a sufficiently adequate set of data from which to offer a recommendation about a parenting plan.” Gould, Jonathan W. et. al., “Critiquing a Colleague’s Forensic Advisory Report: A Suggested Protocol for Application to Child Custody Evaluations” Journal of Child Custody Vol. 1(3) 2004. As Dr. Gould explained, “The custody evaluation process captures a particular moment in a family’s history. The best that evaluators can do is offer opinions about how the family is functioning at that particular moment in time.” Gould, et. al., Ibid, p.39 . Unless there are blatant flaws in the evaluation, it is unlikely that the opposing party will agree to a second evaluation. If, however, you are the unfortunate recipient of such a report, it would be reasonable to discuss such a possibility with your counsel as the report may not rise to an accepted standard and may not be admitted in court. Again, even if the opposing counsel rejects your attorney’s reasonable request, you can then make a motion in court for a second evaluation based on the incompetence of the first.

A second alternative is to hire a different custody evaluator to critique the report of the first, that is, to check over the methods and underlying assumptions and the report itself. This check over can be done without a written report and is the attorney’s work product. Work product cannot be discovered by the opposing party as it is part of your privileged communication with your attorney. If the second opinion confirms or is more critical than the first, it is not necessary to divulge the information. If the critique indicates only minor errors, then it would be best to accept the report and instruct your counsel to craft her or his examination to emphasize your good points. Remember, too, that, while the court will give deference to a competent report, the report cannot possibly cover all the complex intricacies which go into being a good parent.

It is possible that a parent did some crazy things in their youth that the other party is bringing up; it is possible that during the break-up an otherwise kind and loving human being was temporarily displaced by a raving maniac. It is possible that a perfectly fine person and acceptable parent just cannot handle the personality exhibited by one of the children, or that one parent doesn’t relate well to younger children, or is unable help a child with special needs as well as the other parent. There are factors that may be relevant to your particular case which make the parent who receives the less favorable evaluation the better choice. Consider all the facts of your case, not just the evaluation in forming your trial strategy.
“Evaluations of the children themselves should, also, be looked at carefully.

Once parents enter into disputes concerning the custodial placement of children, the children’s life circumstances change dramatically. The children are now living in a world in which there may be significant conflict accompanied by open expressions of anger; where their living circumstances may change unpredictably; and, where the expression of certain emotions may be actively discouraged while the expression of other emotions is reinforced. If assessment is conducted during this period in children’s lives, we must question the degree to which the data obtained are reflective of the children’s pre-conflict functioning or predictive of their future functioning.” Martindale, D. A. (2004). Cross-examining Mental Health Experts in Child Custody Litigation. The Journal of Psychiatry and Law, 29/Winter, 483-511.

Even more important are cultural and ethnic distinctions which may pass unnoticed. If your case involves cultural or ethnic differences which may not be perceived or understood by the evaluator, you may wish to have the report and data reviewed by an evaluator familiar with the cultural practices and biases of the party or parties.

“The cultural impact on the process of evaluation is bi-directional and multi-tiered. First, a parent’s understanding of their family unit disintegration, efforts at reconstitution of their families, and views regarding child custody and access nearly always have a culture-specific core. These perceptions occur at conscious and subconscious levels. Second, an evaluator’s comfort around their own cultural identity and cultural sensitivity are brought into the evaluation process. This can similarly occur at the subconscious level, resulting in cultural ‘blind spots’… Culture specific observations on family violence, child discipline, spousal violence, attachments, and attitudes toward disability and mental illness are all crucial. The challenge for the evaluator is to balance the child’s need, the provincial or regional laws regarding the child’s safety, and the cultural practices and biases of the family.” Reebye PN. “Custody Access Evaluation Cultural Aspects” Psychiatry on Line www/priory.com/psych/ custody. htm January 25th 2000

If the review reveals the need for a more formal critique, it is important for your expert to have all the underlying data. At that point, the data and notes should be made available to review. If this information is not made available as a professional courtesy, it may be necessary to subpoena the information or to take the deposition of the evaluator. Dr. Jonathan Gould, relying and principles proposed by K. Heilbrun, proposes seven areas in which the custody evaluation should be examined:

The evaluator’s role and the defined purpose of the evaluation;
Whether the evaluator’s data gathering model is a currently accepted industry standard;
If collateral sources were used and whether historical data was obtained;
If scientific reasoning and data interpretation were used to connect the characteristics or conditions to the party’s functional ability;
If the information will assist the court on the ultimate issue;
Whether the limitations of the data were set out; and,
If the opinions were supported by empirical data.

Gould, Jonathan W., et. al., Ibid, p.46 .

While it is possible to hire expert after expert to review and critique each report, each finding, and each statement in any report, such actions are usually counter-productive. No report is perfect, but most reports are acceptable. As every trial attorney knows, there is always more research that can be done, more questions that can be asked, more information that can be received. Every agreement written could be combed for typographical errors or minor misstatements, however, for the most part, this information is unimportant and unnecessary.
Use your experts wisely. You have already gone through the time and expenses of a custody evaluation. If your report is so out of line with your interpretation of the facts, have a second expert review and critique the report. If and only if that critique reveals significant problems should a more formal review of the report be made and a second evaluation be requested.

What If The Report Is Devastating for Me?

After you have read the report, you should review it and make notes regarding any questions or comments you may have. Schedule a return visit with your attorney to go over the report. Obviously, at least one of the two parties is going to be unhappy with the report. However, in going over the report it is important to review the facts relied upon, information provided, and balanced reporting. Note the positive and negative comments made about EACH party, and try to read through the report so the ultimate conclusion, while not agreed with, is at least understood.

Dr. David Martindale, a forensic psychologist notes, “Because most litigants are hopeful that they will be favored and feel that they should be and because 50% of them are disappointed, anger is to be anticipated. When non-favored parents mentally search for explanations for the recommendation that has been offered, they frequently look outside themselves, and they frequently conclude that the unfortunate outcome of the evaluation lies neither in their parenting deficiencies nor in the competing parent’s strengths; rather, it lies in errors made by the evaluator.” Martindale, D. A. (2004). Cross-examining Mental Health Experts in Child Custody Litigation. The Journal of Psychiatry and Law, 29/Winter, 483-511. Some litigants blame the evaluator, some blame the attorney, very few of them see his or her own imperfections. As a litigant, you need to look honestly in the mirror while remaining focused on your goal, the best interest of your children. You need to understand the options available. Discuss the apparent validity of the report and the option to have it reviewed by another expert along with the time and cost involved. Discuss also, using the evaluation to craft a custody agreement which will be most favorable to you using the facts and data provided. You need to know that the evaluation is just another tool available for use by the court. Of course, the evaluation is often given great weight. Accordingly, the client needs to be involved in the trial or settlement strategy from this point on.

Your attorney should be clear with you about alternatives. If the issue is related to your conduct, such as use of alcohol or drugs, you need to know that if this problem is resolved, the custody can change, but the problem must be addressed. No custody order is ever permanent. The court must apply the “best interest of the child” standard and that there can be a future change of circumstances, for good or bad, which make it in the best interest of the child that the custody be changed.

Begin to help set the stage for a future change. Ask your attorney for advice on how to build a file for future use. Keep a calendar, keep notes, do everything that the court tells you to do. Most importantly, keep involved with the children.

Safety Concerns in Volatile Situations

If you have fears for the safety of yourself or children after the report is issued, ask your attorney for help in planning a course of action. Do not hesitate to ask the local police or sheriff’s office to provide extra drive bys. Alert friends and neighbors and the school of possible retaliation. No one can be a guarantor of your safety or the safety of your children, but it is important to take steps to prevent possible flight or injury.

The first step required is to assess the nature and severity of the risk. If the risk is temporary and you believe it will “blow over” you may wish to take the children to a safe place such as trip to the beach for the weekend or a visit to grandma’s. Sometimes a weekend is all that is necessary for the other party to calm down.

If, however, you or your attorney or evaluator believe there is a danger that the other party will either try to take the children and run or will try to injure the child or you more significant measures should be undertaken. Such measures can include:

Domestic Violence Protective Order (50b)
Temporary custody order
Keeping the children out of school or day care on a temporary basis or changing the child’s school or day care
Having your attorney contact the opposing counsel and discussing the situation
Contacting the family or friends of the other party and asking that they intervene
Criminal charges for harassment, communicating threats, assault, domestic criminal trespass, as appropriate.
Changing or not answering telephone, moving
Seeking temporary shelter in a safe house or moving to a new residence
Contact the opposing party’s doctor or mental health professional
If warranted, seek involuntary commitment of the other party

If your attorney believes that you may commit acts of violence or try to take the children and flee the jurisdiction, the attorney has several different obligations. No attorney can allow a client to commit a crime. The NC Rules of Professional Conduct state, in pertinent part,
Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:

(1) to comply with the Rules of Professional Conduct, the law or court order;
(2) to prevent the commission of a crime by the client;
(3) to prevent reasonably certain death or bodily harm;
(4) to prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services were used;

If a client states an intent to do an illegal act, the attorney may, but is not required to, report it. This places the attorney, on the horns of an ethical dilemma. While he or she must protect a client’s confidences, all human beings have both a moral and ethical duty to prevent another person from coming to harm. If your attorney asks you to calm down, you should assume that the attorney is concerned and has your best interests at heart. The attorney is trying to ascertain whether you are actually making a statement you intend to carry out or are just blowing off steam. If your attorney believes that you intend to carry out an action you know to be wrong (either take the children or become violent) your attorney should be your advocate by counseling you that such an action is wrong and should not be taken. Your attorney’s obligation is to uphold the law and this obligation includes the responsibility to prevent a crime from being committed.

Conclusion

In responding to the custody evaluation you should review the evaluation critically and with an open mind. A competent report can be a useful tool for both parties. It will allow a platform for negotiations and the possibility of a mediated settlement. It will, also, allow each party to see the strengths and weaknesses of the other party as a parent. These strengths and weaknesses can be used by the court to build an appropriate custody arrangement. While it is immediately suspect to attack a report solely on the basis that it does not favor you, it is equally improper to allow a poor report to remain unchallenged. If you suspect that the evaluation is flawed, before asking for a second evaluation, it may be a good idea to have the report reviewed by a consultant to check the report for impartiality, objectivity, and proper methodology. If it appears that the report is sub par, requests should be made for supporting data. A second evaluation can be requested, but the probability that such a request or motion will be granted is small. Any motion for such an evaluation should contain specific information showing the shortcomings of the original evaluation. No court will grant a second evaluation solely on the basis that you don’t like the first one. If the court does not grant the motion for a second evaluation, you and your attorney should consider the use of an expert to critique the report and offer reasonable alternatives to the court.

Last, and most importantly, the custody evaluation should not be a substitute for the presentation of a custody case. It is a piece of information, but not the only piece of information that the court should consider. Since no custody evaluation can state with certainty what makes a good parent or even what makes a good parent for a specific child, a custody evaluation can only go so far in assisting the court in its ultimate goal of selecting a custody arrangement based on the best interest of the child. The evaluation is not a substitute for evidence and testimony. A well presented case is the best way to assure that the court will make the right decision.

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