The Custody Evaluation Legal and Practical Context
Context
The custody evaluation is often referred to as a “730 Evaluation.” This is because the respective section of the Evidence Code authorizes a judge to order such an evaluation.
A custody evaluation can be:
- Agreed to by the parties and their attorneys (legally referred to as “by stipulation”)
- Requested by either side in a custody dispute, subject to approval by a judge, or
- Ordered by a judge
Typically, the need for such an evaluation arises in the context of unresolved questions about one or both parents’ parenting practices, a parent’s mental health problems because they may diminish parenting capacity, and concerns about child abuse, substance use, and other circumstances that may have a negative impact on the “child’s best interest.” One such circumstance occurs when one parent wants to move out of state and the other parent objects to the move.
By law, the evaluation is supposed to answer the question of what is in the best interest of the child. That is the golden standard in all jurisdictions in the US, and it is supposed to serve as the basis for the judge’s custody/visitation orders. However, what is and is not in the best interest of the child is controversial both from a legal and psychological perspective, a question that will be addressed in another article.
While in theory, any person can hire a suitable mental health professional to conduct an evaluation, unless the evaluation involves all relevant family members (usually both parents and all minor children, but sometimes also the stepparents, step-siblings, grandparents and others, say a nanny), it will be considered a one-sided evaluation. Such one-sided evaluations are discouraged by the courts as well as by the ethics of the mental health professions, a point I will return to below.
An expert hired by one side will often be viewed as a “hired gun.” Since it is in the court’s discretion whether to accept the evidence of a “hired gun,” and since a judge may decide against hearing the hired gun’s evidence, the effort and expense become risky.
Who conducts the custody evaluation?
The custody evaluation is conducted by a qualified mental health professional. The qualifications include having the right training and experience. Typically it will be a psychiatrist or psychologist, although some social workers and some Marriage and Family Therapists (MFT) also do them. Because psychiatrist’s training does not include psychological testing, they are typically not qualified to administer, score, and interpret psychological tests. Most often that is done by a psychologist, because it is a regular part of their training.
Some psychologists do their own psychological testing, while others will refer that portion of the evaluation to a professional who is experienced in psychological assessment. Similarly, an evaluator who is a psychiatrist will likely refer the testing to a psychologist. In this scenario, the family would undergo psychological testing by the testing professional. The job of that professional will be to describe the personalities and family dynamics, and alert the referring professional to any potential mental health or parenting problems.
The testing professional is not supposed to make any custody/visitation recommendations. That job is left up to the referring evaluator, who is under obligation to the court. The evaluator will summarize their work, findings and recommendations and submit a written report.
In some jurisdictions, a “mini-evaluation” can be ordered. It is referred to as “mini” because it is less extensive than the typical evaluation. This may be requested to speed up things, or when the scope of the evaluation can be reduced such as when the court wants to know the answer to a particular question.
Regardless of the type of professional doing the evaluation, that person is likely to be bound to professional standards of conduct and professional ethics.
In the case of psychologists, especially if they are members of the American Psychological Association, they are held to the professional ethics (Ethical Principles of Psychologists and Code of Conduct (1992) and the Guidelines for Child Custody Evaluations in Divorce Proceedings. Of course, these professionals are also bound by the Business and Professions Code.
Another set of guidelines comes from the Association of Family and Conciliation Courts.
How is the evaluator selected?
The judge may select the evaluator and order the parties to contact the evaluator. Sometimes, however, the judge will ask the parties to submit a list of acceptable evaluators from which he or she will pick. At other times, usually through the help of the attorneys in the case who know various evaluators and their reputation in the community, the two sides will settle on an evaluator.
The choice will then be presented to the court and the court will usually approve it. However, the selection process can become tricky. This is because some evaluators are considered to be “neutral,” while others may be seen as pro-father or pro-mother. Others are known for their thorough process, while still others may be seen as too hurried. Then there are those who take several months to complete an evaluation, and those who might do it in several weeks. Moreover, over time judges develop preferences for certain evaluators, so that the actual number of choices may narrow.
These considerations will be weighed by the two sides, and play into the negotiations that may take place either between the two attorneys, or alternatively during a court hearing. Of course, each side hopes to get the evaluator who they believe will be in their favor, and that may prolong the selection process.
Moreover, in some jurisdictions, there are so-called “psychiatric panels.” In some cases the panel is comprised of several professionals who have applied to the court and have passed some screening. In other cases, the panel is simply a list of professionals who assert that they do custody evaluations and who have met the minimal legal requirements. These requirements include, but are not limited to, yearly updates in domestic violence.
To complicate matters, some attorneys want evaluators that are on the panel, others are adamantly set against using them and they prefer to use other evaluators in the community. Which evaluator should be used is a hard to say.
If you are a party to the proceedings and you get to have some say in the matter, you may want to get information about the evaluators you are considering. For instance, evaluators will willingly provide a copy of their resume to an attorney, thereby giving you the opportunity to learn something about them. You, or your attorney could also ask the evaluators some pertinent questions, thereby hopefully satisfying your needs.
As of 2004, all evaluators will need to qualify under the Family Code 3110 and will be required to file a declaration that they meet all the legal requirements for being a custody evaluator. As of 2002, the Judicial Council established requirements for training in custody related subjects. The education, experience, and training requirements to be specified for court-connected evaluators are to include knowledge of the psychological and developmental needs of children and parent-child relationships.
Under the new rule, all evaluators will be required to utilize comparable interview, assessment, and testing procedures for all parties that are consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. Evaluators will further be required to inform each adult party of the purpose, nature, and method of the evaluation.
In addition to the education, experience, and training requirements established by the Judicial Council, commencing January 1, 2005, no person shall be a child custody evaluator unless the person is:
Code of Civil Procedure, section 2032 requires that the professional conducting the evaluation have at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.
In my experience, though, that requirement has not always been upheld by the courts, although that may be changing due to concern about obtaining quality evaluations.
Additional training and experience requirements will be discussed in a separate article.
What happens with the evaluation report?
The evaluator is supposed to simultaneously release the report to the court and to the two attorneys. This should occur early enough before the hearing in which the report will be considered, giving the parties time to examine the report and to consider any objections. (The time line is regulated by court rules and procedures).
If the report is acceptable to both sides, the parties can agree to accept it in its entirety into evidence. If there are some disagreements, the parties will have a chance to rebut the report’s findings and challenge its recommendations, a topic addressed in the next section.
Assuming that the court has accepted the report, it becomes one element in the judge’s considerations. Some judges pay a great deal of attention to the report, while others may not. Since the judge is the ultimate trier of fact (and not the evaluator) and the one who makes the orders, he or she can use their judicial discretion (which in family law is considerable) and within limits make of the report whatever they wish.
In considering the report, the judge is also likely to question whether it is convincing, whether the evaluation was executed fairly, and whether the data pass the evidentiary threshold. (In the family courts, evidence presented will be accepted if it is judged to be “beyond reasonable doubt”). Other judicial considerations are whether the evaluator used acceptable methods, and whether their conclusions logically emerge from the data in the report.
In addition, the judge may consider any discrepancies between the data in the report and other evidence in the case. In considering the report, the judge needs to be guided by their understanding of the “best interest of the child.”
Challenging the report
If either party is unhappy with the report, and its recommendations, they may depose the evaluator, and/or put him or her on the witness stand. Many times, they might seek the help of another experienced mental health professional. That person will become engaged in a critical review of the evaluation process, the methods used, the conclusions drawn from the data and the validity of the recommendations. In this case, the attorney can hire anyone he or she deems suitable.
In the typical scenario, this process will only involve review of the report. But in some cases, the professional may elect to do additional interviewing, and testing in order to bolster their testimony. In many cases, this professional will be put on the stand to present their challenges and opinions. Of course, they will also be cross-examined.
The desirability of a custody evaluation in your particular case will depend on the issues in dispute, the strategy of your attorney, the anticipated costs and benefits and additional factors. If interested in a custody evaluation, you should discuss it with your attorney.
In this article I have described the context in which custody evaluations are conducted. In additional articles, I will discuss the legal and psychological concept of “the best interest of the child,” as well as the custody evaluation process itself.
