A hot topic that has often been debated among family law practitioners is the "custody evaluation." The never-ending question of whether a mental health evaluation is appropriate in a child custody case is a popular subject not only among family law practitioners but also among psychologists. It is also an interesting topic for the non-family law practitioner.

Central to the debate about custody evaluations is this question: Who is deciding our child custody cases—judges or psychologists? A custody evaluation (mental evaluation) is a process in which a licensed psychologist (the custody evaluator) administers a combination of psychological tests; interviews the parents, children, and other sources; and prepares a report outlining the results. Psychiatrists may also be custody evaluators, though psychologists are more frequently used.

CHILD'S BEST INTEREST
Before discussing the custody evaluation further, it is essential to understand that in Pennsylvania the standard in all child custody cases is "the best interest of the child." See Robinson v. Robinson, 645 A.2d 836 (Pa. r994). In child custody cases, the trier of fact is required to develop a complete record. See Jordan v. Jackson, 876 A.2d 443 (Pa. Super. zoos), quoting trial court citing Moore v. Moore, 634 A.2d 163 (Pa. 1993). In order to develop a complete record, the judge may have to hear testimony from many witnesses and obtain evidence from, but not limited to, social workers, neighbors, doctors, teachers and psychologists. In some instances, it may be reversible error for a judge not to solicit or consider competent expert testimony to assist the judge in a custody case. See K.W.B. v. E.A.B., 698 A.2d 609 (Pa. Super. 1997); E.A.L. v. L.J.W.,662 A.2d 1109 (Pa. Super. 1995).

Rule 1915.8 of the Pennsylvania Rules of Civil Procedure provides that the court may, sua sponte, appoint experts to perform physical and mental examinations of the parties and their child[ren], or the parties may petition for the same. See Jordan v. Jackson, supra.

Pennsylvania, in general, favors psychological expert input and assistance in child custody cases as shown by the Explanatory Comment to Rule 1915.8. The Explanatory Comment, which gives insight into the Supreme Court's intent of the Rule, reads, in part: "In order to make a proper determination in a child custody case, the court often requires information which can only be supplied by an expert evaluation of the parties and the subject child." SeePa. R.C.P. 1915.8 Explanatory Comment.

The importance of expert assistance in child custody cases is further evidenced by the fact that if a party fails to obey an order issued pursuant to Rule 1915.8, subsection (g) of the Rule provides that the court may "make an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing in evidence designated documents, things or testimony or from introducing evidence of physical or mental condition, or such other order as is just." SeeRule 1915.8(g). Rule 1915.8 also provides that the cost for the evaluation may be assessed to one party or apportioned to both.

In Pennsylvania, the threshold for qualifying an expert is very low. See Pa.R.E. 702. A person having a reasonable level of specialized knowledge beyond that of a layperson on the subject under investigation that will assist the trier of fact understand the subject under investigation may testify as an expert. See id. The fact finder has the discretion, however, to determine how much weight to accord to the expert's testimony, report and recommendation.

THE CUSTODY EVALUATION
The custody evaluator, who is chosen by the parties with their counsel or appointed by the trial judge, administers combination of psychological tests—such as the MMPI-2, Rotter Incomplete Sentence Blank, Rorschach Inkblot Test, Kinetic Family Drawing and Incomplete Sentences Blank for Children—to the parents, the child[ren] and/or the other adults in the household such as step-parents. In addition, the custody evaluator interviews the parents and child[ren], "collateral sources," such as teachers, coaches, babysitters and others who can provide useful information. The expert frequently reviews report cards and healthcare records at conducts home visits to watch the child[ren] interact with the parents and siblings.

REPORTING THE RESULTS
After all of the testing, interviews, review of documents and home visits are completed, the custody evaluator prepares a report reflecting the results. At the end of the report, the custody evaluator provides the court with his/her recommendation of what is best for the child[ren], based this process. In 1994, the American Psychological Association ("APA') adopted the Guidelines for Child Custody Evaluations in Divorce Proceedings. The Guidelines build upon the APA Ethical Principles of Psychologists and Code of Conduct and provide a framework for the custody evaluator to follow when conducting a custody evaluation.

SPARKING CONTROVERSY
The reason that the custody evaluation is such a controversial topic is that some believe that two primary problems result from the custody evaluation:

  • The recommendation may be based too heavily on the psychological testing, which has no real relation to child custody and parenting; and
  • The custody evaluation may be overly persuasive in the court's child custody determination.

It is true that a particular custody evaluation may rely too heavily on the psychological testing conducted and is not replete with adequate interviewing, observations and other information necessary to make a well-based custody recommendation. However, if we as practitioners realize the shortcomings of this type of evaluation, our learned judges certainly must notice them too. And, in case the fact finder may not have noticed the problems, it is our job as attorneys to show these gaping holes to the judges through cross-examination of the evaluator and scrutiny of the report.

Practitioner's tip: If you notice an evaluation that is inadequate or "off," it is a good idea to hire another expert to assist you in preparing your cross-examination.

Practitioners should not worry that custody evaluators are deciding child custody cases based primarily on psychological testing. An evaluation and evaluator that relies too heavily on tests will most likely be given less weight by the court, as the report and recommendation will not be well-rounded and reasoned enough to be substantially relied upon by the court.

The trial court may give less weight to one custody evaluator and more weight to another, and the appellate court will ordinarily defer to the trial court's credibility and weight determinations. SeeS.M. v. J.M., 811 A.2d 621 (Pa. Super. 2002). Some judges give more weight to the report of mental health professionals than do other judges, but it is clearly up to the trial judge to make the decision.

Have we found a fit in child custody cases for custody evaluations? Yes, if they are well-balanced, complete and "assist" the court in malting its decision of what is in the best interest of the child[ren].

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Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. He is co-chair of the Custody Committee of the Family Law Section of the Philadelphia Bar Association and a member of Council of the Family Law Section of the Pennsylvania Bar Association. His e-mail address is michael.bertin@obermayer.com.

The information contained in this article should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.