Forensics Evaluations in Custody Proceedings, Its Value & its Critics

Mace Greenfield Child Related Issues, Client/Litigant/Pro Se Information


A forensic evaluator is often used as a tool in a custody and/or visitation case or within a divorce action to help determine who would be best suited to be the custodial parent and/or how much visitation would be appropriate.  It also helps greatly in relocation cases.  The ultimate decision as to who will have custody, the schedule of visitation, and if a relocation will be permitted always lies with the judge only if the parties do not settle.  The forensic evaluator can be a social worker, a psychologist, or a psychiatrist who is specially trained for this task.  There is no standardized procedure, and I agree with the critics that there should be.

In general, the evaluator gives both parents an MMPI-2 personality test.  This helps the evaluator to assess the parents as to their personalities and psychopathology. To over simplify, the evaluator meets with each parent individually, the child(ren), each parent with the child(ren), both parents together, and the whole family together.  Sometimes further diagnostic tests are given and/ancillary contacts are made (i.e., teachers, therapists, etc.).  It was long the norm to permit the evaluator to make recommendations in the report as to which parent should have custody and what visitation should be, along with a detailed analysis of the parties from a psychological view point, as well a psychological analysis of the dynamics of the parent child relationships.

There is now a trend to include a provision in the orders for custody forensic evaluations that no opinions are to be provided by the evaluator.  Thus, it is rendered to a “he said she said” report.  This is now criticized by the critics who fought to prevent an evaluator from rendering opinions in the reports.  These critics also state that the “voodoo reports by so the called experts” have caused people to settle.  Anything that causes litigants to settle is a good thing.  If a forensic evaluation provides all the information a lawyer cannot get before trial due to no discovery being permitted in custody cases, it helps to bring more information into the equation to help settlement.  If the forensic evaluation costs $18,000.00 to complete (and I agree it has become too pricey), it is still cheaper than the cost of two lawyers going to trial on custody.  So, if the report causes settlements, avoids trials, saving the litigants money, it is a very good thing.

I have seen so many forensic reports that state what the child had to say, which contradicted what the law guardian (LG)/attorney for the child (AFC) represented to the court that the child said.

The forensic process is also often therapeutic to the litigants. In that process they can vent all their anger and frustration and emotions.  A trial is not the place for it.  By venting it all out in the forensic process, settlement is closer at hand.  I have had clients who saw themselves in a mirror when reading the forensic report and changed their ways for the betterment of their children.

Critics of the forensic process preach all sorts of ill doings by forensic evaluators in real court cases.  However, once you realize that a forensic report is confidential and NOT public information, the critics are limited to the rarer problem cases that are published.  We must remember that only about 17% of cases go to trial, and only about 10% of those cases get appealed.  So, that an extreme few reports are revealed publicly for the critics to harp on.

It is my opinion that most of the critics opposing forensic evaluations and inclusion of recommendations in the report on custody and visitation are gender biased because it was too often only based on the forensic report that gender bias in many of the Courts of New York State was overcome for a father to obtain custody.  It is also my opinion that most of the critics opposing forensic evaluations and inclusion of recommendations in the report on custody and visitation know that lawyers will be able to bill more fees without a forensic report to help settle the cases.

In most cases a child will grow up just well with either parent.  The biggest difference between the two parents parenting abilities being which parent is less or more apt to bad mouth the other parent and which parent is least or most apt to encourage a relationship between the child(ren) and the other parent.

Lawyers and judges usually only see the bad cases, not all the families that get along well enough after divorce who resolved everything before going to a lawyer to finalize it all in legal form which is over 50% of all divorces.

In the 90’s I was the Public Relations Director for many years for Parents Without Partners in Nassau County, NY.  For our Memorial Day and Labor Day community outreach picnics I used invite the Supreme Court and Family Court judges to join us and see the real world of single parenting.  So many judges were shocked seeing moms and dads who had been or still were litigants in their courtrooms who could never be civil to each other being civil to each other in front of their children at the picnic.  What we see and hear in a divorce and custody case is often not a true reflection of reality, but created for litigation purposes.