8.8.2 Risks of Appointment

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.