“F” Is For Forensic Psychologists:
What Role Do Custody Experts Play In A Divorce Case?
As we progress with reviewing divorce basics, the next topic for our discussion corresponded with the letter “F”, which we will utilize to provide an overview of the role of forensic psychologists. By definition, forensic psychology is the intersection between psychology and the justice system. In a divorce case, due to the fact that disputes between parents often arise regarding the custody of their children, there is a recognized need for the involvement of a forensic psychologist. The role of this psychologist, who is often referred to as a custody evaluator, is to provide an independent and objective report regarding a custody arrangement that is the best interest of a child.
The selected custody evaluator maintains a mental health background and will often have experience in child/adolescence psychology. Through the course of their involvement in the case, they will conduct interview of the parties, the children (if age appropriate), review data from psychological testing such as the MMPI (Minnesota Multiphasic Personality Inventory) and speak with collateral contacts, which are typically third-parties such as family friends, teachers, doctors and therapists. Additionally, parties to the litigation are often encouraged to provide any relevant documentation that they believe is relevant to the evaluator’s decision. Such documentation could include email communications, the children’s medical records, photographs or other evidence that may be relevant to the evaluation process.
At the conclusion of the evaluation, the expert will render a report which provides his/her recommendations as to the custody arrangement for the children and a proposed parenting plan that is in their best interests. The final report will detail the evaluator’s findings with conclusions drawn from interviews, observations and psychological testing. I have found through my practice that custody evaluators will often recommend a selected course of therapy for the parties and the children. Many of my clients have found this component of the recommendation especially helpful, as the evaluators often have a therapeutic background and are well qualified to match the parties with a mental health professional that specializes in a particular field. For example, if one party is struggling with their relationship with an adolescent child, connecting with a therapist that specializes in family reunification would provide that parent with a high level of success to resolve the conflict.
In terms of retaining a custody expert, there are three classifications. The first classification is a joint expert. A joint custody expert is retained by both parties to provide an objective analysis regarding the contested custody and parenting time issues. With both parties equally retaining the expert, it is the best practice for the joint expert to not engage in individual conversations with either party’s attorney and all information provided during their involvement is shared bi-laterally between the parties. In regard to cost, a joint expert will save the parties money, as there will be only one round of interviews, testing and review of the submitted materials. I frequently recommend the retention of a joint expert, as the level of impartiality set forth within the eventual recommendation (the expert is a true neutral) will often lead to an out-of-court settlement.
The next category of retention is a court-appointed expert, in which case the court selects and appoints the evaluator. Similar to the joint retention model, the custody evaluator will be a true neutral, with one distinct difference being that the expert will provide his or her recommendations directly to the Court for review. While there are some other slight nuances as the discovery and examination protocol associated with a court expert vs a joint expert, for all intents and purposes, the court’s evaluator will be very similar to a joint evaluator.
The third option for a custody evaluator’s involvement remains an individual retention by one of the parties. In this scenario, the custody evaluator is identified as one party’s expert. While the expert is bound by the duty to remain objective and render a recommendation as to the best interest of the children, it is common for the individually retained expert to provide recommendations consistent with their client’s positions. As noted previously, to avoid this perceived bias, I often recommend the retention of a joint expert to my clients. However, there are scenarios in which an individually retained expert is appropriate. Such a retention is effective to rebut a report of a joint expert, if there is evidence that their conclusions were inconsistent with either the facts presented or the psychological standards in which they relied in their report.
If circumstances arise in which a custody evaluator is involved in your matter, it is important to retain experienced counsel to adequately prepare you the process. The attorneys at Ulrichsen Rosen & Freed have litigated many cases in which custody evaluators are involved and will be happy to assist you in navigating custody and parenting issues.