When Does a Child Custody Evaluator Stop Collecting Data?

Case One

The evaluator completes her report and prepares to send it to the attorneys and the court. The morning before the report is placed in the mail, the evaluator is contacted by the mother, who informs the evaluator that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

Case Two

The evaluator completes her report, and sends it to the attorneys and the court. One week after sending the report, the evaluator is contacted by the mother, who tells her that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

Case Three

The evaluator completes her report three months before trial, forwards it to the attorneys and the court, and is preparing for trial the following day. The evaluator is contacted by the mother, who informs her that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

In each of these case scenarios, the case information is the same; only the timeline has changed. Does when the new information arises influence the answer to the question about whether the evaluator should reopen the evaluation?

Type of Information

Let us look at another case; this time the type of information varies. See if this affects the answer to the question about whether the evaluator should reopen the evaluation.

Case Four

The evaluator completes her report and sends it to the attorneys and the court. The morning before the evaluator's deposition, she is contacted by the mother, who informs her that the father was reported to the Department of Social Services because of allegations that he physically abused the two minor children over the weekend. The children were reported to have bruises over their arms and legs. The mother provides pictures that she took of the children upon their return from their father's home.

Case Five

The evaluator completes her report and sends it to the attorneys and the court. The morning before the evaluator's deposition, she is contacted by the mother, who tells her that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

Case Six

The evaluator completes her report and sends it to the attorneys and the court. The morning before the evaluator's deposition, she is contacted by the mother, who tells her that the father has continuously returned the children late from their weekend visitation, often returning them five and six hours later than the 5 p.m. drop-off time.

In each of these case scenarios, the case information is different in terms of the potential risk to the children. Does what the new information suggest influence the answer to the question about whether the evaluator should reopen the evaluation?

What to Do?

As an evaluator with more than 20 years of experience, I have often struggled with how best to handle new information that is provided to me once my report is complete and sent to the attorneys and court. As a general rule, once my report is written and mailed, I consider my work complete. I also know that there have been times when information has come my way post-evaluation and I have reopened the evaluation and revised my report.

When such unusual circumstances present themselves, I have always sought permission first from the attorneys and, if needed, from the court, to reopen the evaluation. I would not reopen the evaluation process without obtaining permission from the attorneys and/or the court. If one attorney argues against reopening the evaluation and the other supports it, I seek guidance from the court. If I choose to reopen the case, I could be viewed as acting in a biased manner because I chose the direction of the attorney who wanted the evaluation to be reopened. If I choose not to reopen the case, I could be viewed as acting in a biased manner because I chose the direction of the attorney who did not want the evaluation to be reopened. Rather than get caught in the cross-fire, I follow the direction of the court.

It is important for attorneys to understand that psychologists engaged in forensic evaluations are encouraged to define the scope of their investigation at the outset of the examination. Doing this provides evaluators the opportunity to inform the parent-litigant of the specific questions that will guide the evaluation process (Gould, J.W., Martindale, D.A. (2009, May). Specific Questions Guide Child Custody Investigations. The Matrimonial Strategist., 1-3). When new concerns arise, the scope of the evaluation may change. When the scope of the evaluation changes, evaluators must respect the importance of attorneys to discuss with their clients whether or not the newly defined area of additional investigation is to be pursued. Each attorney has the right to challenge additional areas of investigation and make such an argument before the court. The court will ultimately decide what should and what should not be evaluated by its expert witness.

The Specialty Guidelines for Forensic Psychology (Committee to Revise the Specialty Guidelines for Forensic Psychology (2001), Specialty Guidelines for Forensic Psychology (March 2011 draft), www.ap-ls.org/aboutpsychlaw/3182011sgfpdraft.pdf ), describe for forensic psychologists the importance of defining the scope of the evaluation. Guideline 3.01 reads, in part:

Forensic practitioners are encouraged to seek explicit agreements that define the scope of, time-frame of, and compensation for their services” (p. 5). Guideline 11.04 reads, in part:

Consistent with relevant law and rules of evidence, when providing professional reports and other sworn statements or testimony, forensic practitioners strive to offer a complete statement of all relevant opinions that they formed within the scope of their work on the case, the basis and reasoning underlying the opinions, the salient data or other information that was considered in forming the opinions, and an indication of any additional evidence that may be used in support of the opinions to be offered. (p. 15).

Conclusion

The solution is simple. Specify in the order appointing the evaluator when the evaluation activities end. Some may wish to call a stop to investigative activities once the report is written and mailed. Others may wish to have the evaluator accept information up until the time of deposition or trial. Whether you choose one or the other, when the evaluation activities end should be clearly described in the body of the court order appointing the evaluator.

Jonathan Gould, PhD, ABPP, a member of this newsletter's Board of Editors, is also board certified in forensic psychology by the American Board of Professional Psychology. He is engaged in a clinical and forensic psychology practice, specializing in consulting with family law attorneys. He is author of Conducting Scientifically Crafted Child Custody Evaluations and is co-author, with Dr. David Martindale, of The Art and Science of Child Custody Evaluations. He can be reached at [email protected].

When is the work of a child custody evaluator complete? Over the past several years, I have repeatedly run into this question. One side argues that the evaluator's work is complete when the report is written and forwarded to the attorneys and/or the court. The other side argues that the evaluator's role is complete when testimony is complete; the evaluator should gather information up until the time she takes the stand.

There are no clear rules that guide an evaluator. Neither the American Psychological Association's Ethical Code (American Psychological Association (2002), Ethical Principles of Psychologists and Code of Conduct, Amer Psychol, 57, 1060-1073) nor its Child Custody Guidelines (American Psychological Association (APA) (2010), Guidelines for Child Custody Evaluations in Family Law Proceedings, Amer Psychol, 65(9), 863-867) address the question of when the work of an evaluator is complete. Here are some examples that have resulted in this question being raised.

Timing of Information

Case One

The evaluator completes her report and prepares to send it to the attorneys and the court. The morning before the report is placed in the mail, the evaluator is contacted by the mother, who informs the evaluator that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

Case Two

The evaluator completes her report, and sends it to the attorneys and the court. One week after sending the report, the evaluator is contacted by the mother, who tells her that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

Case Three

The evaluator completes her report three months before trial, forwards it to the attorneys and the court, and is preparing for trial the following day. The evaluator is contacted by the mother, who informs her that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

In each of these case scenarios, the case information is the same; only the timeline has changed. Does when the new information arises influence the answer to the question about whether the evaluator should reopen the evaluation?

Type of Information

Let us look at another case; this time the type of information varies. See if this affects the answer to the question about whether the evaluator should reopen the evaluation.

Case Four

The evaluator completes her report and sends it to the attorneys and the court. The morning before the evaluator's deposition, she is contacted by the mother, who informs her that the father was reported to the Department of Social Services because of allegations that he physically abused the two minor children over the weekend. The children were reported to have bruises over their arms and legs. The mother provides pictures that she took of the children upon their return from their father's home.

Case Five

The evaluator completes her report and sends it to the attorneys and the court. The morning before the evaluator's deposition, she is contacted by the mother, who tells her that the father was arrested on charges of viewing and selling child pornography. The mother also provides documentation to support the allegation.

Case Six

The evaluator completes her report and sends it to the attorneys and the court. The morning before the evaluator's deposition, she is contacted by the mother, who tells her that the father has continuously returned the children late from their weekend visitation, often returning them five and six hours later than the 5 p.m. drop-off time.

In each of these case scenarios, the case information is different in terms of the potential risk to the children. Does what the new information suggest influence the answer to the question about whether the evaluator should reopen the evaluation?

What to Do?

As an evaluator with more than 20 years of experience, I have often struggled with how best to handle new information that is provided to me once my report is complete and sent to the attorneys and court. As a general rule, once my report is written and mailed, I consider my work complete. I also know that there have been times when information has come my way post-evaluation and I have reopened the evaluation and revised my report.

When such unusual circumstances present themselves, I have always sought permission first from the attorneys and, if needed, from the court, to reopen the evaluation. I would not reopen the evaluation process without obtaining permission from the attorneys and/or the court. If one attorney argues against reopening the evaluation and the other supports it, I seek guidance from the court. If I choose to reopen the case, I could be viewed as acting in a biased manner because I chose the direction of the attorney who wanted the evaluation to be reopened. If I choose not to reopen the case, I could be viewed as acting in a biased manner because I chose the direction of the attorney who did not want the evaluation to be reopened. Rather than get caught in the cross-fire, I follow the direction of the court.

It is important for attorneys to understand that psychologists engaged in forensic evaluations are encouraged to define the scope of their investigation at the outset of the examination. Doing this provides evaluators the opportunity to inform the parent-litigant of the specific questions that will guide the evaluation process (Gould, J.W., Martindale, D.A. (2009, May). Specific Questions Guide Child Custody Investigations. The Matrimonial Strategist., 1-3). When new concerns arise, the scope of the evaluation may change. When the scope of the evaluation changes, evaluators must respect the importance of attorneys to discuss with their clients whether or not the newly defined area of additional investigation is to be pursued. Each attorney has the right to challenge additional areas of investigation and make such an argument before the court. The court will ultimately decide what should and what should not be evaluated by its expert witness.

The Specialty Guidelines for Forensic Psychology (Committee to Revise the Specialty Guidelines for Forensic Psychology (2001), Specialty Guidelines for Forensic Psychology (March 2011 draft), www.ap-ls.org/aboutpsychlaw/3182011sgfpdraft.pdf ), describe for forensic psychologists the importance of defining the scope of the evaluation. Guideline 3.01 reads, in part:

Forensic practitioners are encouraged to seek explicit agreements that define the scope of, time-frame of, and compensation for their services” (p. 5). Guideline 11.04 reads, in part:

Consistent with relevant law and rules of evidence, when providing professional reports and other sworn statements or testimony, forensic practitioners strive to offer a complete statement of all relevant opinions that they formed within the scope of their work on the case, the basis and reasoning underlying the opinions, the salient data or other information that was considered in forming the opinions, and an indication of any additional evidence that may be used in support of the opinions to be offered. (p. 15).

Conclusion

The solution is simple. Specify in the order appointing the evaluator when the evaluation activities end. Some may wish to call a stop to investigative activities once the report is written and mailed. Others may wish to have the evaluator accept information up until the time of deposition or trial. Whether you choose one or the other, when the evaluation activities end should be clearly described in the body of the court order appointing the evaluator.

Jonathan Gould, PhD, ABPP, a member of this newsletter's Board of Editors, is also board certified in forensic psychology by the American Board of Professional Psychology. He is engaged in a clinical and forensic psychology practice, specializing in consulting with family law attorneys. He is author of Conducting Scientifically Crafted Child Custody Evaluations and is co-author, with Dr. David Martindale, of The Art and Science of Child Custody Evaluations. He can be reached at [email protected].