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Pre-maturely Litigating Psychological & Custody Evaluations

Attorneys who either want to churn fees or who are afraid their client will not do well on a psychological/custody evaluation will oftentimes resort to litigating a psychological/custody evaluation during the evaluation. Their purpose in doing so is to unfairly influence the outcome of the evaluation. Unfortunately, they oftentimes succeed and the family is forced to endure a custody arrangement that is not based on the best interests of the children.

In California, the better practice is to wait until the psychological/custody evaluation is competed and distributed to the respective attorneys and the court and then, if you believe the evaluator’s methodology is problematic, challenge it by either impeaching the evaluator or by hiring another evaluator to perform a “unilateral” evaluation and to critique the first evaluator’s work. (Some states like California allow parties obtain “unilateral” evaluations without a court order; other states require permission from the court.) A “unilateral” evaluator is an evaluator hired by

one of the parties rather than an evaluator appointed by the court. A court appointed evaluator is commonly referred to (in California) either as the “court-appointed evaluator” or the “Evidence Code §730 expert”. In California it is likely a court will continue a custody hearing or trial to give the challenging party an opportunity to depose the psychological/custody evaluator.

Deposing the opposing party or the opposing party’s collateral witnesses and then submitting their depositions to an evaluator during the evaluation is risky business. First, you are effectively telling an evaluator that you think he or she is incompetent. Second, it is arrogant for an attorney to tell a psychotherapist how to do his or her job. Do attorneys really believe an experienced evaluator is not capable of discovering far more about the psychological dynamics driving the discord in the relationship than the attorney is? Third, I sincerely doubt most evaluators bother reading 150-page depositions.

“Litigating” a psychological/custody evaluation is different from preparing for the evaluation. It is absolutely essential that you completely fill out and document each question of (what is commonly called) the “Custody Evaluation/History Questionnaire” that evaluators give each party at the beginning of the evaluation to fill out. What I have seen all to often is a party submitting an inadequate “Questionnaire” and then his or her attorney feels compelled to compensate for the client’s inadequate response by litigating every aspect of the evaluation process.

Once the custody evaluation is completed and distributed, nine times out of ten the parties will not challenge the court-appointed evaluator even if they do not like the evaluator’s recommendations. This is so for several reasons, time and expense being two major reasons. The third reason is that unless the evaluator’s methodology is seriously flawed, it is unlikely the court (depending on the court) is going to reject the evaluator’s findings and recommendations. Indeed, if the evaluation includes a psychological evaluation of one or both parties or their children, it is unlikely a court is going to second guess the psychologist’s findings. It is more likely the court will accept the psychological findings but reject some of the evaluator’s recommendations. This can happen when the case has been before the same court for a year or more and the court understands the psychological dynamics driving the conflict.

If after reading the evaluation you and your attorney feel serious flaws exist in the evaluator’s methodology, it’s time to impeach the evaluator. How to impeach a evaluator is a question for another day.