Steven E. Zemmelman, M.S.W., Ph.D.

How can attorneys representing clients in child custody and visitation disputes work best with child custody evaluators? Evaluators are often perceived as operating independently and in ways that seem cloaked in mystery. At times, attorneys may be puzzled about how to effectively advocate with evaluators for their clients while not alienating the evaluator. The key lies in understanding the role and goals of the evaluator. Along with this understanding it is important to appreciate the limitations of the advocate in relation to influencing the evaluator. I need to preface my comments with the proviso that I do not speak for all mental health professionals who work as evaluators. My thoughts are based on my own experience, that of evaluators I have trained and supervised, and discussions with colleagues. Further, the scope of this article is confined to evaluators working as court appointed experts, or evaluators appointed by stipulation between the parties, and does not address working with experts hired exclusively by one side.

The role of the court appointed custody evaluator is to function primarily as a consultant to the court: he or she conducts a psychological and social study of the family, and develops a set of recommendations for the court based on consideration of the best interests of the child. A good evaluation is “child-focused”: its foundation lies in a sensitive understanding of the total situation of the child. The study should examine the developmental (psychological, social, intellectual, physical, and cultural) needs of the child(ren), each parents’ strengths and liabilities in so far as they are able to meet the child’s needs, factors in the broader social system (e.g., the child’s relationships with members of the extended family system and the community), and any other factors that may be critical to understanding the world of the child. Furthermore, a good evaluation builds upon this foundation to suggest modifications in the child’s psychosocial environment that will help increase the likelihood that the child will flourish. The suggested modifications are presented in the form of recommended roles for and contributions of each parent in the child’s life, involement of extended family, and social support provided by other community resources – schools, day care providers, therapists, tutors, special masters, mediators, and courts.

While the evaluator strives to be sensitive to the feelings and needs of parents, his or her job is not to develop recommendations that safeguard the legal rights of parents. This is a dramatically different role than that of either parent’s attorney, and in some ways also quite different from that of the judge. The attorney is obligated to advocate for his or her client. He or she works to get the most favorable settlement for the parent. Although some attorneys working in family law maintain that their role involves helping the client understand the needs of their children if they are focused solely on “winning,” the majority of legal practitioners view their role as helping to maximize their client’s advantage. The judge must look after the best interests of the child but he or she must accomplish this while protecting the rights of the parents and following the procedural rules of the court. The evaluator functions as the eyes and ears of the court in helping the judge understand the needs of the child and the dynamics in the family affecting the child’s development. The role is unique in that it assigns a quasi-judicial function to a mental health professional entrusted by the court to conduct a comprehensive psychosocial study which involves meeting intensively with family members who are often in great pain and who maintain a great deal of hostility and fear toward one another.

Providing consultation to the court concerning the needs and interests of a child in a contested custody matter is, from a psychological assessment perspective, an exceedingly complex problem. The standard practice of child assessment relies on parents to provide input and background information to help understand the stresses affecting a child. In evaluation work, where each parent’s desire or need to get what they want may obscure their ability to be accurate reporters about their child’s behavior and development, the evaluator must conduct his or her study with less reliable, sometimes quite biased, parental input. In fact, the evaluator most often must conduct the study within the context of hostile parents locked in a bitter power struggle. This context creates pressures on the evaluator, conscious and unconscious, which pull for sometimes powerful reactions to the individuals or the situation. It is a challenge and a practiced skill to maintain ones capacity for careful, reflective thought and investigation when working amidst such hostility and projection. Indeed, one of the issues that arises in training new evaluators is helping them adjust to the extent to which they inevitably experience strong feelings in reaction to children, parents, or attorneys. Competent evaluators know that parents may attempt to distort or otherwise manipulate information to serve their own ends. They use their observations of this dynamic as “grist for the mill” in helping understand the relevant dynamics of the case. The role of the evaluator is to maintain the focus on the child’s needs and interests, while coping with his or her own reactions, even in the face of conflicting information provided and attempts to influence. Thus, the role of the child custody evaluator is not only to conduct a comprehensive psychosocial study of the family that is focused on the needs of the child, but to understand and manage the conscious and unconscious dynamics that are almost always at work in highly conflictual custody conflicts. I think that if attorneys can appreciate some of these factors and keep them in mind, they will be more able to interact with evaluators in ways that facilitate their client and his or her children getting the best possible help. If the evaluator is doing his or her job, overzealous attorney advocacy will likely become a negative factor in the equation and risks being perceived as a factor contributing to the problems between the parents.

Given this framework, attorneys can most effectively help their clients who are going through evaluation by the following:

Assisting in the selection of the evaluator: This is probably the single most useful function of the attorney in the evaluation process. The attorney should be sure to conduct his or her own assessment of the evaluator prior to selection. In my experience, I have most often had attorneys interview me by phone as part of the selection process. On occasion, I’ve had requests from attorneys and/or parents to meet with me in person to interview me. I try to make myself available for all such requests. I continue to be surprised when, absent an direct appointment from the bench, I am selected to conduct an evaluation without either parent or either attorney asking me anything about my approach, background or practice.

A great deal of information can be gathered from review of the evaluators CV, which should be requested. In addition, prior to discussing any details of the case with the evaluator, it may be useful to ask some of the following general questions : “what has your experience been in conducting custody evaluations?”, “what type of clients do you have the most difficulty working with?”, “what type of clients do you most enjoy working with?”, “when do you use colleagues or consultants in working on difficult cases?”, “what are your thoughts about the use of psychological testing in custody evaluations?”, “what are your biases in thinking about child custody arrangements?”, “what do you think about the tender years doctrine?”, and “do you have a contract for custody evaluation work?”. Depending on the specifics of the case, the attorney should then ask several more focused questions to assess the evaluator’s potential thoughts and feelings about his or her client’s position. For example, if an attorney is representing a father seeking custody of a young child, questions about the potential biases of the evaluator in this situation are crucial (“What is your position on the ability of fathers to care for young children?”, “What are your thoughts about the feasibility of joint physical custody arrangements for young children?”, “What factors do you consider in recommending for or against joint physical custody of a young child?”). If there are allegations of sexual abuse, the attorney should ask about the evaluators experience and training in this area. Other issues that commonly arise where evaluator bias should be specifically investigated by the attorney if they are factors in his or her case are domestic violence, homosexuality, ethnicity, and unusual religious or spiritual beliefs. The attorney is most likely to get useful information if he or she refrains from discussing the details of the case prior to querying the potential evaluator. I continue to be surprised by the number of times attorneys call, explain their client’s position, and then ask me whether I might have any bias against such a client. This is an opportunity to assess the potential evaluator, not to argue the case.

During the evaluation: The attorney can be most useful in providing the evaluator with a set of pleadings and, if applicable, prior orders in the case. This is likely to create in the evaluator the sense that the attorney is acting professionally and in a manner that furthers the evaluator’s goal of understanding the history of the dispute. It may be useful, particularly if your client has difficulty expressing his or her opinions and feelings about the case and you know that he or she is anxious about the evaluation, to prepare a letter to the evaluator stating your client’s position. Phone calls to this end are usually not nearly as helpful to the evaluator and risk being perceived as intrusive efforts to influence the outcome. A succinct cover letter, sent with the pleadings, provides an often useful piece of background information. It is always helpful to let the evaluator know that the attorney is available to help if problems arise during the course of the evaluation.

During the evaluation attorneys should check in with their clients to keep tabs on the progress of the evaluation interviews. The attorney should be aware that if the client is spending a good deal of time with him or her focusing on the deficits of the other parent or trying to use the attorney for emotional support, it is likely the client is attempting to use the evaluator in a similar manner. While this is a useful, perhaps somewhat necessary, component of the attorney-client relationship in family law practice, if it is occurring excessively a referral for professional mental health counseling may be indicated. Attorneys should not be hesitant to make referrals for therapeutic support for clients in evaluation who need such services. The level of stress and anxiety is often high, and in many cases constitutes yet another major stressor on people who are already overwhelmed. Emotionally deprived parents who receive appropriate psychological services are more likely to use the sessions with the evaluator to highlight their parental assets.

Another aspect of working effectively with evaluators during the evaluation process arises in those cases where the client complains to the attorney about the evaluator. The lawyer should assess the nature of the complaint, and if is seems warranted, encourage the client to speak directly with the evaluator about his or her concerns. Keep in mind that the client may not feel sufficiently confident to adequately express his or her thoughts or feelings, particularly ones that are critical in nature, directly to the evaluator. In these cases, a letter from the attorney to the evaluator that documents the concerns might be most helpful.

As with any other helping professions, the relationship that attorneys and evaluators establish with one another is critical. Attorneys should make efforts to develop collaborative professional relationships with mental health professionals who practice evaluation and mediation in their area. These relationships can be most useful in helping with client management and control, and in addressing crisis situations that may arise for a child or parent during the course of the evaluation.

After the evaluation: Upon conclusion of the evaluation and submission of the final report, the attorneys may find it useful to request a phone conference with the evaluator for the purpose of clarifying any ambiguities in the recommendations or requesting information concerning the evaluators opinion on issues that may not have been addressed in the report. Attorneys should be aware that evaluators differ in terms of how they perceive their role once the report is submitted. There are those who maintain their neutrality throughout the post-evaluation phase. Others hold that once they have submitted the report, they have taken a stand for a particular resolution to the conflict, and they then become advocates for this position. In either scenario, it is likely that the evaluator would welcome an opportunity to meet with both attorneys or have a telephone conference with both sides in order to discuss and clarify the recommendations made. This might prove most useful to attorneys and could help provide the basis for settlement.

In conclusion, there are several ways that attorneys can work effectively with child custody evaluators. The primary issue that will effect the relationship is a realistic understanding of the role of the evaluator. Given a basic understanding of this issue, attorneys can help their clients by careful selection of an evaluator who is least likely to be influenced against the client by preconceived ideas or prejudices, and by facilitating the flow of information from the parent to the evaluator, when necessary. Finally, attorneys can work with evaluators after the report is submitted to clarify recommendations and work towards settlement.

Steve Zemmelman is a licensed clinical social worker in private practice in San Francisco and Oakland. He has extensive experience as a child and family therapist, and as a mediator and evaluator. He worked on the Joint Custody Project in the early 1980’s as a mediator and research clinician. Since 1984, he has mediated and evaluated hundreds of custody disputes. Mr. Zemmelman teaches Developmental Psychology and Child Therapy at the Professional School of Psychology, lectures at the U.C.S.F. School of Medicine, Department of Developmental and Behavioral Pediatrics, and is a co-director of the Child Custody Training Project in Berkeley.