Custody evaluation: the expert witness and the assessment process.

Lawyers are sometimes at a loss about what to look for and what questions to ask in selecting an expert witness in a child custody/contact dispute. Equally mystifying is where and how psychological testing fits into the evaluation. There are some minimal qualifications that an expert witness should have and some guidelines for forensic custody/contact evaluations with which an attorney might wish to become familiar. An exhaustive list and description of relevant tests and inventories would take a volume or two, but a sampling will be mentioned here to give at least a flavor for their uses (or misuses).

Among all the types of evaluations that the forensic psychologist may be called upon to do, perhaps the most complex and difficult is the custody evaluation. While a diagnostic assessment to address psycholegal issues is the goal with all forensic evaluations, two elements complicate the picture substantially in a contested custody/child contact case. First, the issue is not "mental heath" per se but the best interests of the child. The two are not necessarily synonymous. Some mentally healthy people don't do well with kids, while some who are a little neurotic may be excellent parents. Thus, the focus is on parenting in all of its ramifications--skill, technique, rapport, attachments and bonding, communication, the developmental needs of the child, schedules of contact, etc. Second, the evaluation must consider relationships or interactions among the parties not just their individual intrapsychic adjustment. One must focus on six complex combinations: (1) mother to child; (2) father to child; (3) mother to father; (4) the converse--child to mother; (5) child to father; and (6) father to mother. In the case of multiple children, the complexity expands geometrically and the issue of sibling bonds may come into play, especially if there is a large gap in their ages. A set of child custody or parenting time recommendations then may be made based on the evaluation data. Some courts prefer that just the findings be submitted and no custody recommendation be made, but most, in my experience, prefer both. Of course, the court is under no obligation to abide by recommendations.

It should also be mentioned that often the least important part of a custody evaluation is the custody recommendation. A custody dispute generates a good deal of conflict, anger, and turmoil, usually not just to the detriment of the child but also to the parents. Therefore, recommendations geared to helping resolve issues beyond parenting time or residential placement may be more important than the custody recommendation. Just moving a set of problems down the road is hardly a solution. Although often hard for parents to appreciate in the midst of battle, the "best interest of the child" usually also is the best interest of the parents.

Custody/contact evaluations still include the same four steps involved in any other forensic evaluation: (1) picking an expert; (2) collecting data; (3) assessing the data; and (4) communicating results. A custody evaluation is best done with the sanction of the court to underscore for the parties the evaluator's neutrality and obligation to the court (and child), not to the principals themselves. This is true regardless who is responsible for payment. Fees also are best handled on a retainer basis.

PICKING THE EXPERT

Psychologists probably perform most custody evaluations, but social workers and psychiatrists also are retained. These mental health experts are trained to have diagnostic skills, but there is usually nothing inherent in their training to equip them to do custody evaluations. If there is any doubt about qualifications, one would do best to ask about training and experience. The American Psychological Association's Guidelines for Child Custody Evaluations in Divorce Proceedings clearly state that "[c]ompetence in performing psychological assessments of children, adults, and families is necessary but not sufficient" (1) to undertake custody evaluations. In addition to clinical expertise, the mental health professional should have "specialized knowledge, skill, experience, and education" and "a fundamental and reasonable level of knowledge and understanding of the legal and professional standards that govern their participation as experts in legal proceedings." (2) Those skills are most commonly learned via post-doctoral continuing education and/or supervision. Also, while knowledge of child development is necessary to any evaluation …