Custody

Custody What If We Can’t Agree?

Once the legal process has started, you may have still other options which are intended first to try and resolve, and then to decide, your contested case.

Mediation-Court Ordered

Courts require the parties to mediate when there is a disputed custody or visitation issue. This is true in “initial” proceedings, modification proceedings and in contempt actions.  When mediation is ordered by the Court, it will stop all other actions relating to custody and visitation which are pending in the case, until the mediation is complete. This may prolong the legal process. The court will initially order the parties to attend two mediation sessions. The court has the authority to order two additional sessions for good cause if the Order is preceded by a mediator's recommendation. The parties may voluntarily extend mediation beyond the first two sessions. The court has the power to allocate any costs of mediation between the parties or to order one of the parties to pay the entire cost.

Custody Evaluations

Custody evaluations may be done by mutual consent at any stage of a custody dispute.  If there is not mutual consent, the Court may do so if requested by either party.  However, referral to an investigative or social agency is not mandatory.

Role of Evaluator

A custody evaluation typically involves a qualified mental health professional whose role in a custody dispute may be:

1.   To conduct an evaluation and make a written recommendation to the Court, counsel for the parties and/or the parties themselves. 

2.  To conduct an evaluation and, prior to making a recommendation, discussing the results of the evaluation with the parties and/or counsel in an attempt to mediate a resolution of the conflict. 

3.   To testify. 

4.   All of the above.  

Define the Role at the Start

If a custody evaluation is requested by either or both parties:

1.   The role of the mental health professional should be clearly defined in the Order appointing him or her.    2.   It is important that the Order defining the evaluator's role in the case also address the issue of his or her cost.  The parties may agree to pay or divide the cost.  Alternatively, they may agree to pay or divide the costs subject to the Court's reserved right to reallocate financial responsibility for the costs incurred at the conclusion of the case.

Communications With The Evaluator Are Not Privileged

The communications you make to a custody evaluator are not privileged . Evaluation is not “treatment”.  and your communications may very well become part of an evaluator’s testimony in a litigated (trial) custody dispute.

Can Your Therapist Talk to the Evaluator?  

 Your communications with your treating psychiatrist or licensed psychologist are “privileged communications”. If you are in counseling, or if you have been in treatment in the past, your counselors cannot be compelled to provide information to the evaluator, or to testify in a court proceeding, unless you have waived the right to claim the privilege. This privilege belongs to you. A parent in a custody or visitation dispute cannot be compelled to waive his or her privilege. It can, however, be waived. In some cases, your counselor may be a valued ally, and you may want them to testify. 

Children

Communications between a child and his/her therapist are likewise privileged. Neither parent, even a parent having sole custody, can waive that privilege on behalf of the child in a contested custody case. In any case in which a child's treating therapist is called upon to to provide information to an evaluator (or to testify if that becomes necessary), the Court must appoint a “guardian” for the exclusive purpose of deciding whether or not it is in the child’s interest to waive the privilege and allow the treating therapist to discuss the case with the evaluator and/or to testify in  a court proceeding.

Evaluator’s Role At Trial

The court appointed evaluator is an officer of the court. At the request of either party, the evaluator may be called as the Court's witness. The evaluator will then be subject to cross-examination by both parties.  Unless the parties’ consent, it is improper for a court to consider the custody investigator's written report without giving both parties an opportunity to read the report and to challenge it on cross examination. Child custody reports often include opinions of various social workers, medical, paramedical personnel, psychologists, teachers and the like, which may or may not have a reasonable basis.  These reports are not given under oath, and they often include comments or observations from people having an overt or covert bias.  If a court bases its custody decision, even in part, on an independent report, the parties and/or their attorneys must be given the opportunity to examine the report, and must be allowed the opportunity to cross-examine the investigator and produce outside witnesses to establish any inaccuracies the report may contain.

 

 See: American Psychological Association Guidelines fotr Custody Evaluations

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