Custody Evaluations without Psychological Testing: Prudent Practice or Fatal Flaw?

Article excerpt

When is it appropriate to omit psychological testing from a child custody evaluation? When is the omission serious error? Because all forensic evaluations begin with a legal question (typically: what is in the child's best interest), this discussion begins with a foundation in law and admissibility of scientific testimony and evidence. Then, this article distinguishes among tests, inventories and questionnaires. From there we present pertinent parameters flowing from ethics, regulatory authority, and test publisher requirements. With that foundation in place, we take up the issue of when it is entirely appropriate to omit psychological testing and, in converse, when such omissions likely fall below the standard for custody evaluations.

Foundation

Purpose of child custody evaluations

Custody examiners design evaluation methods, craft reports, and offer testimony that is relevant and helpful to the court, The examiner's report and consultation should advise the parties and inform the court based on generally accepted behavioral science methods. Although 42 states articulate statutory custody guidelines for the court to consider when making legal determinations of custody and visitation, rarely, if ever, do the statutory guidelines particularize the methods and procedures evaluators should use to assess those factors (Elrod & Spector, 2007). Absent specific direction from statute and/or case law, evaluators must rely on other considerations, including generally accepted scientific methods and procedures, standards of practice and ethical principles when designing a custody assessment strategy. Evaluation methods falling short of the prevailing scientific standard likely have little value and are probably inadmissible.

Custody evaluators serve several audiences. First, they consult with the parties who are front line decision makers in raising children. Second, through their reports, mental health evaluators (MHE) inform the attorneys of their findings, recommendations, and anticipated testimony. Third, if the parties do not or cannot fulfill their duty to make decisions on behalf of their children, then evaluators advise the court of findings based on generally accepted practices in the field. The court ultimately decides the issue based on law and the evidence.

MHEs should not proceed with unconfirmed assumptions about the scope of their evaluations. While custody might be at issue before the court, MHEs are not always engaged to conduct a full custody evaluation. The authority for and scope of the evaluation derive from the court order or an agreement between the parties. MHEs risk a host of criticisms when proceeding in pro forma fashion or with boilerplate procedures that are not responsive to the specifications of the appointment order or which are unenlighten about the law.

There are at least three types of evaluations, and one variant, when custody is before the court: full custody assessment, parental capacity evaluation, and/or focused psychological evaluations of specific issues involving one or more of the parties. First, by definition a full custody evaluation requires a comparative analysis of both parties' parenting in light of the needs of the child.. "To determine what is 'best' for the children, the court must engage in a comparative analysis. Such an analysis will permit the court to decide which parent is best qualified to provide the highest quality of care to the children" (Keel v. Keel, 1983). The correct test for the determination of child custody requires an analysis of the circumstances of both parents and the children. Positive as well as negative characteristics of each participant should be considered.

A change of circumstance case is a variant of the custody issue. Herein, a litigant moves the court to modify the existing final order controlling custody. Rather than reexamining all of the original issues and findings, the court typically limits its review to changes subsequent to the previous final order. …