A Judge’s Guide

EXPERT HELP
If the mother is depressed and the father alleges that she is therefore incompetent
to care for the child, or if the father’s strange behavior might be attributable to
illness, or the child has experienced dissociative episodes, a psychiatrist would be
an expert who could analyze both the medical and mental health aspects.
To summarize, whenever there are substantial allegations of mental or emotional
problems, you will need a clinical expert to help you discern the impact on the
child. In addition, most judges agree that divorces with a high quotient of
conflict, anger, and familial violence also require clinical analysis. Some judges
also find it useful to call on a clinician if outside adults have significant roles to
play in the child’s life, like grandparents, stepparents, and companions. 11
Can one expert handle all the tasks: the child’s needs assessments, home studies,
and mental and/or behavioral assessments? In all likelihood, yes. A clinical
practice, referred to as “child custody evaluations,” has grown up around family
disputes. Professional associations such as the American Psychological
Association (APA), 12 the American Academy of Child and Adolescent Psychiatry
(AACAP), 13 and the Association of Family and Conciliation Courts (AFCC), 14 as
well as some courts, 15 have developed guidelines for their practitioners. The
guidelines cover a comprehensive service: interviews, home investigations,
observations of family dynamics, administration of tests if necessary, and reports
to the court. A 2001 survey of psychologists indicated that the typical child
custody evaluation took about 26.4 hours (excluding court testimony and
conversations with lawyers), and the average fee was $3,335.00. 16
Notwithstanding the existence of such guidelines, there is no accepted formula for
conducting a child assessment and evaluation. Courts must decide the outcome
based on all of the evidence of what is in the child’s best interests.
A value in having one expert perform and manage the child custody evaluation is
the greater likelihood of a cohesive report and a better opportunity to test
reliability of the data. 17 It also is less confusing to the parties and perhaps less
expensive. Parties who are dissatisfied with a court-appointed expert’s
recommendations can obtain their own expert and attempt to enter additional,
more agreeable opinions into evidence.
Ethics and Conflicts
In order to avoid conflicts, two issues must be decided at the outset of the case.
First, the judge must decide whether to appoint the experts or leave that task to
the parties. The court may benefit from the parties’ recommendations, but courtappointed
experts usually have the highest credibility for a judge, and often for all
the parties. The profession’s guidelines require neutrality whether it is a party or a
court that hires them, 18 a difficult tenet to fulfill when the hiring party is
aggressively pushing for a particular outcome. Psychologists prefer to work for the
court, rather than one of the parties. 19 A court appointment is consistent with
forensic practice and the best interests of the child.
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