The Psychologist's Role
In Contested Custody Cases

Many contested custody cases require a mental health professional in the preparation of a case. Courts often will appoint mental health experts to help them evaluate the participants in a contested custody case and to make a determination of what will be in the best interests of the child or children. The lawyer must find, choose, hire, and prepare a mental health professional for his custody case, unless the court has appointed an expert. Oftentimes, lawyers will still hire their own experts. After the lawyer and the doctor have agreed to work together, most likely, they will agree that the psychologist's role is to evaluate the parties and render a report. In order to do this, there are certain steps which the psychologist should follow.

I. The Initial Interview

The doctor and the lawyer should make an appointment to meet to speak face to face about the case and its needs if at all possible. The lawyer should use that initial interview to clarify the doctor's role as an expert witness, even when working with an experienced forensic psychologist. He should be prepared to discuss the following matters: (1) the doctor's qualifications and orientation; and (2) the lawyer's goals. The lawyer should explain the nature of the specific custody case and his own goals regarding it. It is important that the lawyer and the doctor talk about this as they may find that the doctor does not agree with the lawyer's goals. Accordingly, these should be discussed with complete candor in advance.

II. Exchange of Information

The lawyer and the doctor should exchange information, and there should be free access to all of the lawyer's relevant information. For example, other psychiatrists or psychologists may have seen the client or the children, and medical reports may be available from them or the family doctor, which the psychologist should obtain. If the lawyer does not have these reports available, the doctor might procure them after obtaining signed releases by the client. The attorney thus avoids the possibility that the expert witness will be confronted on the stand by opposing counsel with questions as to the client's medical background which he did not know existed.

III. The Report

In most cases, a report will not obviate testimony, and the doctor must be instructed that he cannot assume that it will. Usually, the psychologist's report is studied by opposing counsel so that the psychologist could be effectively cross-examined by him or her. The lawyer must make the psychologist aware that he must be prepared to testify concerning all of the information and conclusions in the written report. The decision whether to use psychological tests or any type of diagnostic efforts should be the choice of the examining psychologist. The psychologist should withstand any pressure from the attorney to tell him whether to perform tests on his clients. The tests may not be necessary if the clinical findings reached by the interview, the person's behavior, and history are sufficient. When there is a question of the subject's level of functioning or the possibility of personality problems, perhaps, psychological testing is indicated. Again, this should be the decision of the psychologist.

The importance of a doctor's objectivity, both in his report and in court cannot be stressed enough. It is the lawyer who is the advocate, not the doctor, even though the doctor may be engaged as an expert witness by one side. A psychologist should want to avoid the label of being one of those "hired guns." Even if a point will weaken the case of the attorney who hired the psychologist, objectivity will be better in the long run. Doctors should be ready to testify in both medical and lay terms, and their evaluation should also reflect that in the report.

The psychologist's approach to the case will probably depend upon his own style, but he should operate within the framework used by other psychologists. First, he will want to gather data and information about the family involved. This information may come from several external sources, in addition to information provided by the lawyer. This information may include such items as medical and psychiatric records, as well as legal documents, school records, and previous psychological tests.

The psychologist should perform an initial interview, and it is his decision whether to see only one parent or both parents and the children at a session. He may choose to wait to have initial interviews with each party. The amount of time will be the psychologist's choice. Some psychologists feel that maintaining a 45-minute session, even with custody case evaluations, is important because it prevents tiredness on the part of both examiner and subject. However, other doctors may dislike the pressure of time restrictions. The doctor has to initially address the question, "Does the parent really want custody of the contested child?" This may not become readily apparent during the first session, but the psychologist must remember this throughout his contact with each of the parents. The psychologist must also determine why the parent wants custody, and he must evaluate the information given to him to support the contesting parent's wish for custody. Sometimes, it will be apparent that the parent's sole purpose in wanting custody is only to be vindictive towards the other parent or for his or her own needs, rather than for the child's best interest, which is the judicial standard in contested custody cases. The doctor will also have to explain to the people he interviews that he is not a treating physician, but rather, an evaluator of the parties.

Most often, a doctor will schedule several sessions with each parent and, perhaps, will have joint interviews with the parents together to see their interaction and to determine their capacity to work together after settlement of the litigation. He might also want to have joint interviews with the children. It may also be advantageous to interview all the siblings together, as well as separately, so that the interaction of the children can be seen. Joint interviews of the parents and children could provide insight into the interrelations between parents and children.

In reaching a clinical judgment, the doctor will make a recommendation to the court that the best interests of the child would be with one of the parents because of certain issues. It is important that the psychologist spend equal time with each of the parents. If the doctor spends significantly more time with the parent who hired him, it will be brought out in cross-examination. The report is of major importance in a case. It should contain the following information:

    1. A brief history of the situation leading to the custody battle and the doctor's involvement.
    2. Background data of each of the parties based on information given to him;
    3. Medical history;
    4. Description of the examination process;
    5. A list of the issues to be addressed and the procedures used in answering questions
        illuminating those issues;
    6. A brief clinical evaluation of the pertinent parties.
    7. Impressions;
    8. Opinions;
    9. Recommendations and discussion of those recommendations, including any specific
        recommendations for therapy for any or all of the parties involved.

The doctor's report will go to both lawyers. The court will want to know if the child suffers from any mental illness, whether any illness is controllable or remedial, and whether either of the parents suffer from a mental illness. The court will also want specific recommendations with regard to custody and visitation. Further, it will want to know whether there should be supervised visitation or, in extreme cases, whether there should be any visitation at all.

The importance of the psychologist's report cannot be emphasized enough. The court will give careful consideration to the doctor's report and subsequent testimony. Moreover, people's lives hang in the balance.

Toby Solomon is an attorney based in Roseland, New Jersey

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