8.8.4 Opposing Appointment

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.