Guildelines for Forensic Evaluation Orders, During a Custody Dispute
Because New York State fails to define statutory requirements for child custody evaluations, the courts are left to clarify their own expectations of forensic examiners during these evaluations. Despite the great importance of these documents, they are sometimes vague or lacking provisions which would impel evaluators to follow them, allowing numerous problems to arise.
Orders often lack measures binding the evaluator to adhere closely to the them. These voids are made apparent when evaluators do not follow the letter of the mandate, appearing not to have read or simply to have disregarded it. One egregious example stems from the current tendency of judges to forbid evaluators to make recommendations regarding who should have custody of the children. Judges frequently make this measure clear in their orders, but sometimes evaluators nevertheless make their recommendations apparent in their reports. A simple solution to this problem would be to include a provision requiring evaluators to attest under oath that they have indeed read the order and agree to abide by all of its provisions. This would prompt closer observance of the protocols specified in the order.
Likewise, another problematic matter is that of the evaluator taking on both the role of evaluator and therapist or adviser, what the American Psychological Association (APA) calls a multiple relationship. This occurs when, among other things, the psychologist is in both a “professional role with a person” (as a psychologist), and at the same time is in either a relationship of a different nature with the person (such as that of an evaluator) or in a relationship with a person closely associated with the person (again, such as that of an evaluator to a court). The APA considers the assumption of a multiple role to be unethical if it could “reasonably be expected to impair the psychologists' objectivity, competence, or effectiveness in performing his or her function as a psychologist.”
A psychologist may not consciously enter into a multiple relationship with a client but informal indiscretions can easily occur if the evaluator is not watchful. For example, a parent who is being evaluated may ask the evaluating psychologist for advice in dealing with a certain problem regarding the child. Giving advice would comprise the assumption of a role in the family dynamics, as opposed to remaining an objective observer. If one or both parents disregards the advice of the evaluator, it may be an even more complicated task for the forensic to objectively evaluate the family dynamic. The complications deepen in the even more common case that the forensic suggests a particular custodial agreement. The potential for bias is apparent: the evaluator may look more favorably upon those parents who follow his advice than on those who disagree with it.
Again, the solution to this problem would be to include a specific provision in the order restricting the evaluator to a forensic and investigative capacity, explicitly prohibiting him from acting as a therapist, adviser, or mediator even if his services as such are requested.
Additionally, this problem can be avoided if the order is written with specific instructions as to the questions an evaluator should attempt to answer in his investigation of the family dynamics. This entails another provision in the order detailing those questions, which may include:
- What are each party's parenting methods, and what are the strengths and weaknesses of those methods?
- What are the particular needs of the child?
- How do the parties' parenting methods meet or neglect the needs of the child?
- How well is each parent able to cooperate with the other to address the child's needs?
- How well is each parent able to support the other's relationship with the child?
- How fit is the party to parent?
- What is the current living situation of the parent, and what is the impact of that living situation on the child?
- Does the parent make appropriate decisions for the child?
- Is there anything that might affect the living situations and access schedules ordered by the Court?
- Are there any of the following behaviors or factors apparent in the parents: alcohol or substance abuse, interference with access, sexual abuse, alienating behavior by the parent?
Provisions binding the evaluator to follow the letter of the order, followed by specific instructions in the order will avert the danger of compromising the evaluator's objectiveness and clarify the focus of the evaluator's task, enabling more just proceedings.