A custody evaluation, sometimes called a parenting evaluation, can be brief and focused on a specific issue, or it can be a more comprehensive process addressing complex issues before the court. In either case, you as a lawyer can help your client prepare emotionally and with documents and facts to support their position. This is true if you are fully representing your client, if you are serving your client with a limited scope representation, if you have a modest means case, or if you are providing consultation to a self-represented litigant. This article examines how you can help your client prepare for the evaluation process.
Evaluator’s Preparation for the Evaluation
Your client can expect to receive a written document, often referred to as an informed consent document or statement of understanding, from the evaluator explaining the procedures (interviews, observations of parents and children, home visits, and possibly psychological testing), fees, and statements about the limits of confidentiality. The document should also explain procedures that the evaluator will use to gather collateral documents and to speak to relevant collateral witnesses. In addition, this document should explain what will happen when data gathering is complete and who will have access to the report if one is written.
Parent’s Preparation for the Evaluation
Prior to the first interview, parents should gather relevant documents, including, but not limited to, school records, therapy information, and a list of collateral witnesses. Where there are specific complex issues, such as relocation, domestic violence, child abuse, etc., your client will want to gather supporting documents and records from the court file or elsewhere that support these issues.
Mental preparation is also key to interview preparation for the parent. There are four critical areas your client should be prepared to discuss. First, your client should understand why the evaluation is necessary and all their concerns that lead them to want to have the evaluation. Second, your client will want to discuss the history of parenting and the parenting strengths and weaknesses of all parental figures involved, including legal and stepparents or parents’ significant others. Third, the evaluator will want to know about the children, including the children’s needs, interests, and any difficulties the children have had. These issues can also address how the children have changed since the separation or the precipitating event for the evaluation, if applicable. Finally, your client should be prepared to discuss what they are seeking from the evaluation and why they believe that will be best for the children.
It is imperative that your client stay balanced between the need to express all legitimate concerns about the other parent and how the other parent’s behaviors might be negatively affecting the children, while simultaneously avoiding badmouthing or bashing the other parent. A good way to remain in this balance is for your client to explain how they support the children’s relationship(s) with the other parent, as well as protect the children from exposure to conflicts and exposure to any potential harm, if relevant. Parents should avoid “diagnosing” the other parent. Remember, credibility is always important. A credible parent stays balanced and focused on the children’s needs, whereas a less credible parent describes situations and people in either/or terms and only focuses on their own perceived strengths as well as the other parent’s perceived weaknesses. Your client will want to show a combination of being open and insightful about their own contributions to problems, clear about their concerns regarding the other parent, and focused on why they are relevant to the specific issues of the case or the best interests of the children.
Have your client be prepared to talk about the children’s varied needs, i.e., their psychological, emotional, educational, social, and extracurricular needs. Your client will want to be prepared to describe the future needs of the children and the preferred outcome from the evaluation. Most importantly, your client will need to be prepared for why they believe the preferred outcome is in the children’s best interests.
Your Client’s Emotions
One of the biggest challenges for parents going through a custody evaluation is managing their emotions. The reason for this is simple: Most parents love their children, want the best for their children, and are afraid that if their concerns are not taken seriously, harm might come to their children. At the same time, many parents going through a custody evaluation are confused, angry, and overwhelmed, and may feel that they have been falsely accused by the other parent or believe that the other parent is lying and/or distorting the truth in the court. Often, they are also grieving the loss of a relationship or blaming themselves for trusting their former partner for too long or not seeing warning signs they see clearly in hindsight. Further, experiencing the stress and trauma of the court process shuts down higher brain functioning and makes it more difficult for parents to extricate themselves from emotional reactions and either/or thinking.
Parents should stay focused on the facts and why they are concerned for their children while also expressing emotions sufficient to the situation, whether laughing when telling funny stories about a child or crying when discussing the fear of any abuse that might have existed or might exist in the future. Be real, and if the situation is appropriate, cry or express sadness and fear as would be expected. Parents can be prepared to talk about why they feel the way they do while also focused on the needs and best interests of their children.
It is very difficult to remain emotionally balanced throughout this process. Your client might benefit from a therapist for support or a divorce coach who can assist your client to be prepared and know what to expect, while simultaneously learning to manage emotions to the best of their ability.
There is considerable controversy about the use and misuse of psychological testing in custody evaluations. Typically, when the mental health of one or both parents is questioned, a custody evaluator will include psychological testing among the several procedures used. Such testing would usually be done by a psychologist, but sometimes psychiatrists who do custody evaluations might do their own testing. Four critical issues are to be considered. First, the use of testing should always be determined based on the scope of the evaluation. Second, psychological testing should only be used to generate hypotheses about the persons involved and not for generating conclusions about a person’s psychological functioning. Third, the information gathered from psychological tests is likely to have limited or no value specific to parenting or co-parenting, in large part because the inferences to be gained from such testing are about individuals and the problems are in the family. Fourth, psychological testing often yields inferences about diagnoses, which are much less relevant than behaviors in understanding the family dynamics.
If you learn that psychological testing is to be used in one of your cases, coaching by a psychologist that includes going over the potential tests with the litigant parent would most likely be considered unethical. Regarding psychological testing, simply encourage your client to answer items in the testing truthfully and to avoid trying to fake the testing.
A critical part of the evaluation process is the interviews with each parent. An evaluator is likely to ask questions of each parent to learn how they believe their children are functioning. Most evaluators recognize that many critical and relevant issues are perceived differently by each parent. Evaluators often ask each parent about the statements and allegations made by the other parent. These are not meant to be gotcha moments, and they do not indicate the evaluator believes one parent over another. The follow-up interviews and questions help the evaluator develop hypotheses and form a more thorough picture of the family and their unique dynamics. Specific examples with an explanation about why the situation worries the client are more beneficial than general statements about concerns or fears. Likewise, evaluators should not ask about generalities and should focus on specific situations and how they impact the children and the entire family. If your client believes the evaluator is not interested in details, have your client ask how they can provide additional information and details to the evaluator.
More importantly, throughout the interviews, clients should avoid defensiveness, stay focused on the needs of the children, acknowledge how they have contributed to some of the problems, and demonstrate insight into the family’s struggles over the years.
After the Report Is Submitted
You and your client will need to consider how the evaluator conducted the evaluation and why the evaluator reached their findings and conclusions. Be open to how/why the recommendations are in the best interests of the children. If an evaluator appeared to use a thorough process, in depth and with breadth, especially with the relevant and critical issues, you might realize that your client’s co-parent might also not be happy with certain aspects of the evaluation.
However, if your evaluator did a superficial job, was not balanced in procedures, or showed evidence of cognitive or other biases, you might want to engage the services of a consultant or expert witness to help you raise these issues with the court.
Going through a child custody or parenting evaluation can be stressful for your client. Mental and procedural preparation can help reduce, though not eliminate, the stress. From a less-stressed position, a parent can provide the evaluator necessary facts and details and stay focused on the well-being of the children. By telling the truth, by focusing on each parent’s strengths and weaknesses as parents, and by avoiding a litany of blaming the other parent, your client can appear more credible. Finally, by being open to learning from a well-done evaluation, your client will hopefully be able to settle the case and move forward to caring for themselves and their children.
Disclaimer: The views and opinions expressed here are those of the authors and do not necessarily reflect the official policy or position of the University of Baltimore School of Law Sayra and Neil Meyerhoff Center for Families, Children and the Courts.
Robert A. Simon & Philip M. Stahl, Forensic Psychology Consultation in Family Law Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony. 2d ed. (ABA Family Law Section, 2020).
Philip M. Stahl, Conducting Child Custody Evaluations: From Basic to Complex Issues (Sage Publications, 2010).