When divorcing and children are involved, a court may order, or a party may request, a psychological evaluation of both parents. A psychological or parenting evaluation can be an extremely important consideration in a bitter custody battle. Choosing the right individual to perform the evaluation and then to testify is an incredibly important and challenging decision. Once the decision is made as to who the expert psychiatrist should be that does the evaluation, disputing the results if they are negative to your client becomes paramount.
Under the rules of evidence and case law in some states (for example, Ohio), the reports themselves are not admissible without the individual who wrote them being present to testify about the report unless the parties stipulate. Far too often attorneys stipulate in order to make things easier upon themselves or with the mistaken belief that a stipulation is the only way to go. By stipulating to the report’s admission, it makes the battle to discredit the report that much more difficult. For example, if you stipulate to the admission of the report, you cannot then argue that you did not get a chance to cross-examine the preparer or question the methodology.
As part of the trial for custody, every individual who signed the evaluation should be subpoenaed to testify. Some evaluations may only have one individual but there are also may be several. Ascertaining what each individual actually did on the evaluation is important.
Some evaluations may be completed by interns with oversight by the psychiatrist. The background of both the intern and the psychiatrist is important as well as how much oversight was actually completed. What was the level of experience, skill, professional training or knowledge of the intern? Was there disclosure of all data or other information used by the intern in formulating the expert report to the psychiatrist? Was the methodology or theory used by the intern pertinent to the child custody matter? Was the intern thorough in familiarizing himself/herself with the case? Did the psychiatrist review tapes of the evaluation or just read the final report and add his signature? The participation of each signatory is of the utmost importance. Each of those individuals will have different educational and professional backgrounds which may provide an argument for the reliability (or lack thereof) of the results or expose bias.
The experience the individual has in completing evaluations also matters. The amount of time spent on the evaluation itself coupled with the methodology behind the evaluation can be possible areas of attacking the recommendations. For instance, the parenting evaluation may have included sociological tests such as the MMPI or it may be based strictly on self-reports. There may be time spent observing the parent and child.
The reliability of the foundational information matters. Some evaluations may only include information obtained by self-reports while other evaluations may include independent background searches and communication with and from collateral sources such as other professionals, family and friends of the person being evaluated. The source of the information is important. If most of the information is from someone whose credibility is doubtful that impacts the outcome of the report. There may be collateral information included such as interviews with third parties. If those third parties are biased, their information could alter the outcome of the evaluation in a way that can be attacked so understanding who was interviewed is something that should be explored. Are those people affiliated with one parent or the other? Do they have backgrounds? Do they have a reason to lie?
Put simply, there are various points to attack a parenting evaluation: the methodology of the evaluation; the experience of the evaluator; the participation of the signatories of the evaluation; the biases of the evaluator; the reliability of the foundational information; and, what information, in and of itself, is actually being utilized. Observations by the evaluator and scientifically based tests are bound to be more reliable than self-reports or information from biased sources.
