A child custody evaluation is where a clinical psychologist interviews the parents and those involved in the children’s care, conducts psychological testing, and gathers collateral data relevant from the matter. With this, the clinical psychologist prepares a report—and recommends from a clinical psychologist’s standpoint what physical, legal, and parenting time schedule is in the children’s best interests. The end result is a written report sometimes filed or provided to the attorneys at least ten days prior to the initial custody or modification hearing. This blog covers child custody evaluations and what you need to know.
In both the Paternity Divorce Acts there are statutory provisions to allow a court to order a child custody evaluation. In both cases, despite what the statute says,1 child custody evaluation is typically only performed by clinical psychologists; they are the only professionals who can perform psychological testing, which may be of critical importance where the mental and/or physical health of a parent are involved. In the Paternity Act, the statutory provision a party’s attorney could reference or cite to obtain to request a custody evaluation is Indiana Code section 31-14-10-2:
“The probation officer may do the following: (1) Consult with any person who may have information about the child and child’s potential custodial arrangements. (2) Upon approval of the court, referral the child for professional diagnoses and evaluation. (3) without consent from the child’s parents or guardians, consult with and obtain information concerning the child from: (A) medical; (B) psychiatric; (c) psychological; or (d) other; persons who have knowledge of the child.”
In the Divorce Act, Indiana Code section 31-17-2-12 is the controlling authority for a court to order a custody evaluation, if requested by a party’s attorney:
“(a) In custody proceeding after evidence is submitted upon the petition, if a parent or child’s custodian so requests the court may order an investigation and report concerning custodial arrangements for the child . . . .2
Custody evaluations are quite expensive and can be used to make broad recommendations as to physical and legal custody and parenting time or more limited ways, such as whether relocation is in the children’s best interests. Typically, the parent requesting the evaluation will have to pay for the evaluation, although the court may consider apportioning the cost of the evaluation between the parties at the hearing on the matter. There are very few clinical psychologists conducting evaluations in Indiana and this tool should only be requested (the court has to approve the evaluation) in limited circumstances.
Typically, custody evaluations are used when a party believes many subtle facts that have accrued over a long period of time that the parent believes collectively add up to a substantial change in circumstances, and, of course, it is in the children’s best interests that custody be modified. Any one given act or inaction may not demonstrate a substantial change, but taken together or collectively considered, they may convince a child custody evaluator there has been a substantial change in circumstances.
The other circumstance in which it is common to seek a custody evaluation is where there is alleged substance abuse and/or mental illness, or both, which is referred to as having a dual diagnosis. A mentally ill person may turn to drugs to mitigate the effects of the mental illness. Psychological testing is a key component in determining mental health issues or substance abuse—there may be no medical records or police arrests/convictions to corroborate this medical issue.
The beginning of the process is psychological testing and interview of various parties who are providing care for the children. The end of the process is gathering collateral evidence which tends to support or contradict the contentions of the parents and commonly include documents, such as school reports/record, medical records, and police reports to name a few, as well as interviews of key third parties, such as teachers and babysitters.
Finally, the clinical psychologist will prepare a report and set forth the process of the interviews and observations, psychological testing, and collateral materials referenced, then issue a report to the court on what physical and legal custody arrangement, as well as parenting time is in the child(ren)’s best interest. It is important to note most judges place a great deal of weight on custody evaluations. However, trial courts are not bound to follow a child custody evaluator’s recommendation as it ultimately based on all of the evidence determines what is in a child’s best interests. In fact, in one of the Firm’s recent appellate cases, the trial court declined to follow the custody evaluator’s recommendation for joint legal custody.3
This noted, a key reason your attorney may suggest a custody evaluation is that a custody evaluator may rely on evidence in your case that you could not otherwise authenticate and get into the evidence at trial under Indiana Rule of Evidence 703:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence, provided that it is the type reasonably relied upon by experts in the field.
Ciyou & Associates advocates are intimately aware of the power of the tool of a custody evaluation. They are not the right legal tool in all cases. The Firm individually assesses the merits of every domestic case it is involved in and deploys all reasonable means to assist the client to meet his or her custody objectives. This blog is written by attorneys at Ciyou & Associate for general educational purposes and is not intended to be relied upon in any given legal situation. Additionally, it is not legal advice. This is an advertisement.
- In the Paternity Act, it sets out that a probation officer may be the one to conduct or facilitate the custody evaluation. This is outdated language, and a clinical psychologist would be the professional to conduct a custody evaluation. Probation officers are not involved in juvenile paternity cases in most cases. A better way to think of the statute is to mentally insert “child psychologist” in place of the term “probation officer”.
- This is a very lengthy statute that also sets forth individuals who could conduct such evaluations besides a clinical psychologist, but this too is outdated language. Child psychologists are the only professional with the necessary license to conduct a child custody evaluation and perform psychological testing. They can perform a wide array of psychological testing to detect substance abuse or mental illness. Further, custody evaluations are conducted in accordance with the American Psychological Association's guidelines for custody evaluations. No other party who may investigate and make recommendations to the court, such as Guardian ad litem is authorized to conduct psychological testing. Furthermore, there are no real guidelines for Guardian ad litem to follow. The balance of this lengthy statute addresses the admissibility of the report, and this is beyond the scope of this blog.
- Karole v. Kalamunda, 175 N.E.3d 287, 292 (Ind.Ct.App.2021).