James R. Balmforth: Psychological Evaluations in Utah Divorce and Custody Cases

There is a lot of fuss and fanfare about psychological evaluations in family law to determine child custody. The most common reason we hear for requesting a psychological evaluation in Utah family law cases (divorce, custody, visitation, shared parenting), is, “I think my ex is bipolar and I want custody of my children.” Many clients want to have a psychological evaluation performed in their cases, but what happens in those evaluations is a big mystery to them.

When the purpose of the psychological evaluation is to determine which parent is more suitable to parent children (a Child Custody Evaluation), there are guidelines that an evaluator must use. On February 21, 2009, the American Psychological Association revised their “Guidelines for Child Custody Evaluations in Divorce Proceedings”. They are now known as the “Guidelines for Child Custody Evaluations in Family Law Proceedings“, an acknowledgment to the fact that the definition of family in America is changing, and psychological evaluations are no longer used only in divorce.

Contrary to what most parents believe, the purpose of a psychological evaluation is not to see if either parent has a mental health diagnosis. The Psychologist’s contact with the parents is unlikely to be sufficient for the Psychologist to actually make a diagnosis. At best, they may be able to observe characteristics which might be “consistent with” a certain diagnosis or disorder.

If the purpose of the examination is not to make a diagnosis, then what is it? In a nutshell, the purpose is of the psychological evaluation, or child custody evaluation, is:

Where possible, to answer the referral question that was set out in the Court’s order which required one or both parents, and the Child, to participate in the evaluation; and
To determine the psychological best interests of the Child. Where appropriate, the Psychologist can make a recommendation as to which parent is better equipped to meet the psychological needs of the Child.

10 Things to Discuss with Your Attorney

Sometimes the Court will choose the evaluator, and sometimes the Court will allow the parties or attorneys to choose or have input regarding which psychologist will perform the evaluation. In that case, here are 10 important things to discuss with your attorney:

How much will the psychological evaluation cost?
Who will pay for the psychological evaluation?
Does this Expert generally prepare a written report? If so, does the Expert generally prepare the report on time, or request multiple extensions of time to prepare the report? If you don’t want your case to drag on, is this the Expert for you?
When this Expert prepares a report, does he or she generally make a recommendation to the Court, or avoid making a recommendation to the Court?
What does this Expert charge for his or her time in depositions, and for court time? Is it a higher hourly rate or an expensive flat fee? If your case goes to trial, you will probably need this Expert to come to court. Can you afford to pay for that?
Has your Attorney worked with this Psychologist before? If so, what were your Attorney’s impression of his or her work?
In your Attorney’s experience, does this Psychologist generally make a recommendation which favors mothers? Or fathers? If your Attorney’s experience is that a particular psychologist almost always recommends one parent over the other, and that parent is not you, you should discuss your concerns with your Attorney.
If need be, will the Psychologist participate in depositions and testify in court? Believe it or not, some psychologists who will perform custody evaluations do NOT want to give a deposition or go to court in any way, shape or form. Although they can be compelled to do so, discuss with your Attorney why you would voluntarily agree to hire an unwilling expert.
Is the Expert willing to supply his or her information, notes, etc. in response to a subpoena, to the extent permissible by law? Does your Attorney know if the Expert has redacted information or notes when his or her records were subpoenaed? If so, why? Was there a legal basis for doing so, or was the Expert trying to hide something that should be discoverable?
What is the Expert’s working relationship with the Guardian Ad Litem? Does your Guardian Ad Litem always suggest this Expert? If so, why? Does the Expert have discussions with the Guardian Ad Litem that he or she does not disclose to your Attorney?