Emery on Child Custody Evaluations

If you are embroiled in a dispute about child custody — about where your children should live or some related conflict — your lawyer, opposing counsel, or a judge may recommend a child custody evaluation. Child custody evaluations usually are performed by mental health experts, psychologists or psychiatrists who have specialized training in divorce, family law, and custody arrangements.

Evaluators typically meet with each parent and each child, maybe separately, maybe together, maybe both. Evaluators also are likely to have different family members complete various psychological tests. They also may talk with your children's teachers, their caretakers, and perhaps with other family members. The whole process can be time consuming, and it typically is quite expensive.

Does all of this do any good? Maybe. Maybe not. Unlike what you might think, mental health experts do not possess special knowledge that allows them to tell you and your ex what is best for your own children. Several psychological scientists, including myself, have criticized child custody evaluations as resting on very shaky scientific ground — or on no foundation at all. Here's a link to a critique that colleagues and I wrote about custody evaluations as it appeared in Scientific American Mind:

http://www.scientificamerican.com/article/custody-disputed/

If you want to listen to a National Public Radio discussion of several experts (including me) questioning custody evaluations, click on this link:

http://www.npr.org/templates/story/story.php?storyId=16523618&ft=1&f=1070

In addition to their weak scientific basis, one-sided custody evaluations, where you or your ex hire an evaluator, may be dismissed by a judge as biased. (If one-sided evaluations aren't dismissed, look out. It's really hard not to be biased in favor of the side that is paying you. And besides, smart lawyers "shop" for an evaluator who they know in advance is likely to favor their side.) These are reasons why most experts agree that, if an evaluation is performed at all, the evaluator should be a neutral expert either appointed by the court or agreed upon by both sides.

A good, neutral evaluator might help you reach an agreement out of court, and that is a positive step. The expert might learn, for example, that one or more or your children have strong and well reasoned opinions about where they want to live. Such views, particularly when they come from adolescents, strongly influence evaluators' recommendations — and judges' decisions. Of course, your children's views also should influence you and your ex. I always find it sad when parents need a third party to tell them what their children want.

Evaluators also might help you reach an out of court settlement by sharing their informed opinion about what custody arrangement seems best to them. Judges are strongly influenced by the views of neutral evaluators, and you and your ex might decide to avoid a legal battle and go with the evaluator's recommendation — or something close to it.

But there are big dangers here, and you should be well aware of them. Custody evaluators do not have any magical or scientific answers for you. There always is the risk that an evaluator will come to some quirky or unfavorable recommendation, or that a judge will be influenced by an evaluation that, in your view, clearly is biased.

This brings me back to my constant bottom line: Everyone will be better off if you and your ex grapple with these issues yourselves, even though this is likely to take time and emotional energy. If you are going to hire outside experts, employ someone who will help you to reach a settlement — for example, a mediator or collaborative lawyers. You can create your own parenting plan. And if it's your plan, you and your ex can revise your plan based on your children's (and your own) changing developmental needs. Click here for some suggestions on getting started with your Parenting Plan.