Appointing a custody evaluator is unlikely to help in a family violence case and can often make things worse for victims and their children. Although most family attorneys simply capitulate to evaluator appointments—or even ask for them—lawyers representing victims should be especially weary. As explained below,1  the appointment of an evaluator makes it more likely that the parent with a history of abuse will be awarded child custody.

Realistically, it is not easy to avoid the appointment of an evaluator in some custody cases. But the following sections explain why lawyers should try and provide some basic tools and arguments to help.

• 1See Section 8.8.2.

A growing body of studies suggests that the appointment of a custody evaluator makes it less likely that family courts will respond appropriately to reports of abuse in custody cases.1  Some experts have concluded that the increasingly frequent appointment of custody evaluators and guardians ad litem is a principal reason that abusers routinely win custody.2  Many, if not most, custody evaluators lack meaningful training and expertise in even basic dynamics of domestic violence; they are unfamiliar with reputable professional literature in the field, and do not believe that domestic violence is an important factor to consider in making custody recommendations.3  In fact, a great deal of evidence suggests that evaluators are biased against believing reports of abuse because they are unaware that contested custody cases have much higher rates of domestic violence than uncontested cases.4  The National Council of Juvenile and Family Court Judges cautions against using custody evaluations in abuse cases and has published a guide for judges that explains the reasons.5  The guide is an excellent resource for attorneys opposing the appointment of an evaluator in domestic violence cases.

General mental health evaluations and psychological testing in domestic violence cases present similar problems. Many custody evaluations include both. Psychological testing tends to normalize abusers and pathologize victims.6  Domestic violence is not a mental health problem, and abusers typically appear “normal” in response to psychological testing and evaluation.7  People subjected to abuse, on the other hand, can present poorly in mental health evaluations that do not properly account for their experiences of abuse and are done by someone who lacks expertise in trauma and abuse. A poorly conducted mental health evaluation of a victim suffering from the effects of abuse will usually pathologize her normal responses.8  It is common for some psychological testing to result in victims being labeled anxious, paranoid, “histrionic,” borderline personality disordered, or even schizophrenic.9  And once an evaluator improperly labels a victim with a personality disorder, both the evaluator and the court sometimes conclude that the “conflict” between the parties is attributable to the “disorder,” not the abuse.10

Moreover, courts often give disproportionate weight to psychological testing because they wrongly assume that psychological testing is probative for determining whether someone is a perpetrator or victim of abuse, or for determining parenting capacity. No psychological testing is designed for these purposes. Even more, poorly trained mental health professionals are unlikely to connect a victim’s psychological presentation to the effects of abuse, or to recognize symptoms of Post-Traumatic Stress Disorder that can make victims seem less credible during the evaluation process and while testifying.11  Typically, this happens when victims appear to overreact to issues that seem “trivial” to an outside observer, when they lack emotional affect when describing violence, or when they giggle inappropriately.12  Similarly, poorly trained professionals can also wrongfully attribute trauma-related memory problems to a lack of credibility, such as when a victim has difficulty recounting events chronologically.13  When mental health professionals fail to properly contextualize these behaviors, they reinforce the court’s tendency to attribute them to a lack of credibility.

For all of these reasons, attorneys representing victims may need to oppose an evaluation, or at the very least, oppose an evaluation that includes psychological testing that was not designed to be used in the context of either a custody dispute or trauma. Though most psychological testing in this context evades meaningful scrutiny by lawyers and judges, there are persuasive legal arguments to exclude psychological testing, because the tests most used by evaluators lack scientific validity for use in the context of custody disputes or abuse.14

• 1Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 299 (2009).
• 2Id.; Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657 (2003).
• 3Stark, Rethinking, supra, at 298–99; Meier, supra, at 708; see Daniel G. Saunders, et al., Beliefs and Recommendations Regarding Child Custody and Visitation in Cases Involving Domestic Violence 22 Violence Against Women 651, 732-34 (2016); see Jason D. Hans, et al., Effect of Domestic Violence Allegations on Custody Evaluators’ Recommendations, 28 J. Fam. Psychology 957, 963–65 (2014).
• 4Meier, supra, at 708. Ironically, many evaluators express skepticism about abuse allegations in “high conflict” cases, but fail to recognize that highly contested custody cases do in fact involve higher rates of abuse because batterers are more likely to engage in protracted custody litigation to punish their victims. Id.
• 5Clare Dalton, et al., Nat’l Council Juvenile & Family Court Judges, Navigating Custody & Visitation Evalutions in Cases with Domestic Violence: A Judge’s Guide (2006).
• 6Meier, supra, at 712–13.
• 7Stark, Rethinking, supra, at 296.
• 8Meier, supra, at 712–13.
• 9Nancy Erickson, Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What does Psychological Research Tell Us?, 39 Fam. L.Q. 87, 89 (2005).
• 10Id.
• 11Meier, supra, at 691.
• 12Id. at 691–92.
• 13For a quick and easy primer on trauma and memory, see mediaco-op, Trauma and the Brain, YouTube (Sept. 21, 2015).
• 14Meier, supra, at 712–14.

The use of custody evaluations in abuse cases makes it much more likely that the parent with a history of abuse will benefit from inadmissible and discredited “parental alienation” theories.  A 2023 United Nations report described “parental alienation” as a “highly gendered” pseudo-psychological concept that has gained traction in family courts globally, despite having been rejected by the relevant medical, psychiatric, and psychological communities.1  As explained in the report, “[t]here is no commonly accepted clinical or scientific definition of ‘parental alienation’. Broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father.”2  Perpetrators of abuse invoke “parental alienation” in custody cases as a way of discrediting legitimate reports of abuse—by accusing the abused parent, or the protecting parent of an abused child, of coaching or poisoning the child against them.3  Some states, like Louisiana, have adopted “friendly parent” provisions in their child custody statues that abusers often invoke when making parental alienation claims, asserting that the parent who is trying to protect a child is an “unfriendly” parent who is unwilling to facilitate a relationship with the other parent.4  The U.N. report provides a clear, comprehensive overview of “parental alienation” theory, its use by domestic violence perpetrators in family courts, and the devastating extent to which it has endangered victims of domestic violence and their children.5

The first thing lawyers need to know about “parental alienation” theory is that it is not a mental health diagnosis, it is a legal defense. The defense strategy involves accusing the abused or protecting parent of “parental alienation” if a child reports abuse to her or a third party or the parent who has been subjected to abuse seeks visitation or contact restrictions on the abusive parent. Under parental alienation theory, a child’s report of abuse, her alignment with the safe non-abusive parent, or her rejection of the abusive parent, is attributed not to the child’s experiences of abuse but to a mother who is vindictive and has “poisoned” a child against their father.6

The defense is highly effective, in part because the harder the mother tries to prove the abuse or protect the child, the stronger the abuser’s alienation claim becomes.7  For example, if the child continues to report abuse after being disbelieved, the reports become evidence of continued brainwashing and the mother’s recalcitrant position; if the child’s therapist opines that the child is abused, the therapist is demeaned as biased and contributing to the brainwashing at the mother’s behest; if the mother seeks to have her child professionally evaluated, her conduct is labeled medical or psychological abuse; if the mother provides reassurance or guidance to the child about how to distinguish between healthy relationships and abuse, or does anything to acknowledge how the child’s experiences with or exposure to abuse has impacted them, the mother is accused of undermining the other parent. “High-conflict” litigant has become a code word that courts and custody evaluators often use for victims who fight for appropriate restrictions on a dangerous parent.  Ironically, mothers who fail to respond appropriately to their children’s reports of abuse and fail to seek out treatment or assessment, risk losing their children for failure to protect. Because any course of action can be used against them, the “parental alienation” defense creates a legal “catch-22” for protecting parents of abused children.

The parental alienation defense is highly gendered and is especially effective against victims of abuse because of the way it plays into cultural tropes about vindictive women. It shifts the burden onto victims to show that they are not alienating the children, while the party making the alienation accusation need only prove that the child is afraid of them or aligned with the other parent. The party alleging alienation need not prove any actual conduct by the parent accused of alienation. Instead, they show only that the child disclosed abuse, aligned with the parent accused of alienation, or is fearful of the parent accused of abuse and then the alienation is presupposed. In other words, the evidence of abuse is the evidence of alienation.

The parental alienation defense is delivered to family courts primarily through testimony from custody evaluators who label victims “unfriendly parents” or “alienators” when they seek restrictions on an abusive parent. From a legal standpoint, testimony about parental alienation syndrome (or related parental alienation theories named differently) should be excluded under evidentiary standards for admissibility because it is not supported by empirical science and has been rejected by researchers.8  But from a practical standpoint, most courts conduct little evidentiary gatekeeping for custody evaluations or the flawed unscientific theories they rely upon, like parental alienation. So, attorneys should expect resistance from family courts if they contest custody evaluations or challenge the scientific validity of the testing and theories relied upon by evaluators. Courts routinely rely on concepts of parental alienation to find allegations of abuse not credible.

It is important to note that the unscientific “parental alienation” theories espoused by many evaluators differ from legitimate psychological concepts of alignment, estrangement, and alienation. Some parents do engage in behavior that denigrates the other parent and damages the relationship between the child and the other parent.9  In fact, this type of conduct is a prevalent feature of the parenting style seen in batterers.10  But instead of relying on testimony about a mystery syndrome that presupposes its conclusion, lawyers and experts should prove the conduct that the party is accused of engaging in. In other words, lawyers representing victims should present evidence and testimony to prove the ways the abusive parent deliberately undermines the victim’s parenting and denigrates her to the children—and avoid relying on unscientific theories that are harmfully deployed against victims.

• 1Reem Alsalem (Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences), Custody, Violence Against Women and Violence Against Children, U.N. Doc. A/HRC/53/36 (Apr. 13, 2023).
• 2Id. at 3.
• 3Joan S. Meier, The Misuse of Parental Alienation Syndrome in Custody Suits, in 2 Violence Against Women in Families and Relationships 147 (Evan Stark & Eve Buzawa. eds., 2009). At most, parental alienation is a legal hypothesis to explain a problem in a parent-child relationship. Id. at 150. The theory is not supported by empirical evidence and has been broadly discredited as a scientific theory. Id.
• 4See La. C.C. art. 134(12) (requiring that courts consider in awarding custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party” (emphasis added). The italicized “except” clause above resulted from a recent amendment, which presumably makes it harder for an abuse perpetrator to use the statute against a victim parent or protecting parent.
• 5Alsalem, supra.
• 6Id. at 148.
• 7Id. at 149–50.
• 8See Nat’l Council of Juvenile & Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2006).
• 9Cf. La. C.C. art. 134(A)(12) (requiring that courts consider when evaluating custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party”). Note that the provision does not apply in domestic abuse cases. See La. C.C. art. 134(B).
• 10Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).

In a “family violence” case, lawyers should usually oppose the appointment of a custody evaluator as premature, at least until the court has ruled on the allegations of “family violence.” In many cases, custody evaluators serve little function beyond substituting their own credibility determinations for those of the court. The presentation of testimony and evidence is the best way to determine whether abuse has occurred, and only the court should make credibility determinations regarding allegations of abuse. Psychological testing, mental health evaluations, and custody evaluations are not scientifically valid ways to determine whether someone is abused or an abuser. Once the abuse has been proven, the PSFRVA’s mandatory custody provisions are triggered and the mental conditions of the parties or the “best interest” assessments of evaluators should not be at issue.

A contradictory hearing to determine good cause should take place before a custody evaluator is appointed.1  A request for mental health evaluations is governed by La. R.S. 9:331, La. C.C.P. art. 1464, and, in PSFVRA cases, La. R.S. 9:365. These statutes require that evaluations be ordered only for good cause shown and upon notice to the other party.2  The existence of an abuse claim, standing alone, should not constitute “good cause” for a mental health evaluation.3  But if a custody evaluation is ordered in a case involving allegations of family violence, the evaluator must have “current and demonstrable training and experience working with both perpetrators and victims of family violence.”4  The enforcement of this provision is essential to protect survivors from the dangers of evaluations by poorly trained mental health professionals.

In most domestic violence cases, lawyers should contest both the issue of “good cause” and the qualifications of the evaluator. Procedurally, evaluations, parenting assessments, and best interest assessments should not occur before the perpetrator of family violence or domestic abuse has satisfied the pre-requisites for invoking the narrow exception to the custodial presumption. In other words, unless the abusive party has satisfied all of the conditions for rebutting the PSFVRA presumption and alleges that the child’s best interest requires the abusive party’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstances affecting the child’s best interest, the motion should be denied.5

If the court orders an evaluation over your objection, request an opportunity to examine the proposed evaluator’s qualifications before the appointment or to submit a list of proposed evaluators whom you believe meet the statutory qualifications. Few mental health professionals have “current and demonstrable” experience and training working with both victims and perpetrators of abuse.6  The fact that the court has routinely relied on an evaluator in the past is not evidence that the evaluator meets the PSFVRA standards for appointment. And the fact that an evaluator may have conducted numerous prior evaluations in abuse cases—albeit incompetently—does not meet the statutory test for qualifications. If an evaluation is ordered, it must be paid for by the abusive parent and not split between the parties.7

If an evaluation has been ordered in your client’s case, you will probably need to identify potential evaluators from among professionals who do not routinely conduct court-appointed evaluations. Most people who maintain a regular court-appointed evaluation practice are not also experienced practitioners in the field of domestic violence. Also, it can be useful to identify previous cases in which evaluators have been involved and to review the frequency with which they discredited reports of abuse or relied upon unscientific and invalid theories or procedures. Even after an evaluator has been appointed over the victim’s objection, there may be opportunities to raise the issue again. Unqualified evaluators will sometimes utilize processes that are dangerous and highly inappropriate in family violence cases, such as joint meetings between the parties.

• 1La. R.S. 9:331. A mental health evaluation may only be ordered for good cause shown. Id.
• 2La. C.C.P. art. 1464.
• 3Cf. Bourque v. Bourque, 03-1254 (La. App. 5 Cir. 3/30/04), 870 So. 2d 1088 (psychological evaluation denied where no psychological issues involved in case). But see Jones v. Jones, 19-66 (La. App. 5 Cir. 5/29/19), 274 So. 3d 811, 820 (trial court had good cause to order appointment of custody evaluator based on “acrimonious” history of the parties, including physical abuse, abusive conduct, and refusals to co-parent).
• 4La. R.S. 9:365.
• 5Under La. R.S. 9:364, the party with a history of family violence cannot have unsupervised visitation or move for custodial rights until he has successfully completed a treatment program designed for perpetrators of abuse, which usually takes 6 months, and is free from drug and alcohol abuse. Even then, the party with a history of abuse can only get unsupervised visitation if it is in the child’s best interest. And custodial rights are even more difficult for an abuser to obtain. The abuser must prove that the child’s best interest requires his participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstances which affect the child’s best interest. This test is akin to proving parental unfitness, a high legal burden. For further discussion, see Section 8.3.2.
• 6La. R.S. 9:365.
• 7La. R.S. 9:367.