Child custody matters can be stressful, and the introduction of a forensic evaluation can often make the situation more complex. However, forensic evaluations in child custody proceedings represent the essential nexus between the fields of psychology, psychiatry, and the legal profession and aim to ensure the best interests of the child are the priority.

The United States legal system is cognizant of the long-established constitutional right of parents to raise their children free from government intrusion. Nonetheless, in the context of child custody disputes, New York State Courts must apply the best interest of the child standard and may appoint a mental health professional to conduct a forensic evaluation to assist with this determination.  N.Y. Dom. Rel. Law §240(1)(a-3)(1). 

What Is the Basis for Forensic
Evaluation in Child Custody
Matters?

Forensic evaluations may be initiated in a variety of different manners. A parent may request a forensic evaluation, it may be recommended by a court-appointed attorney for the child, or it may be ordered sua sponte, without a formal request from either party involved, by the court itself. See Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1 (1962).

The scope of forensic evaluations may vary depending on the specific circumstances of the case, but they all include the preparation of a confidential report that provides an official recommendation to the court concerning child custody arrangements. These evaluations are critical in providing objective, clinically based information that can aid the court in making its final determinations regarding the child’s welfare.

The Court may direct a forensic evaluation in the presence of certain indicators, including, but not limited to, the following:

ν allegations of domestic violence

ν substance abuse by one or both
parents;

ν a diagnosed mental illness affecting parenting capacity;

ν a parent’s relocation with the child out-of-state; or

ν concerns regarding questionable parenting practices or behaviors.

Requirements for Forensic
Evaluators

Pursuant to Domestic Relations Law Section 240(1)(a-3)(4), New York courts may only appoint forensic evaluators who are:

ν licensed psychologists, social workers, or psychiatrists in New York State; or

ν certified as having completed domestic violence and child abuse training within the past two years.

Additionally, Section 208.18 of the Uniform Civil Rules for the Supreme Court and County Court (22 NYCRR §202.18), titled “Testimony of court-appointed expert witness in matrimonial action or proceeding,” provides that“[i]n any action or proceeding tried without a jury to which section 237 of the Domestic Relations Law applies, the court may appoint a psychiatrist, psychologist, social worker or other appropriate expert to give testimony with respect to custody or visitation, and may appoint an accountant, appraiser, actuary or other appropriate expert to give testimony with respect to equitable distribution or a distributive award.”

Furthermore, forensic evaluators are required to undergo biennial training focused on various critical topics, including coercive control, the psychological effects of trauma (particularly sexual trauma), the psychological sequelae of abuse, and the potential risks associated with adverse childhood experiences (ACEs). N.Y. Dom. Rel. Law §240(1)(a-3)(2); N.Y. Exec. Law §575(3)(o). This training is developed and periodically updated by the Office for the Prevention of Domestic Violence (OPDV), in partnership with the New York State Coalition Against Domestic Violence (NYSCADV). See https://www.op.nysed.gov/releases/advisory-notices/requirements-forensic-custody-evaluators; https://opdv.ny.gov/event/forensic-custody-evaluation-certification-course. 

The Forensic Evaluation Process

The forensic evaluation process typically involves interviews, observations, psychological testing, and document review. 

Forensic psychologists assess a broad range of issues including, but not limited to:

ν Parenting skills and styles: The evaluator will assess the overall approach that parents take in raising their child, which encompasses various practices, attitudes, and behaviors that shape a child’s social, emotional, and cognitive growth.

ν Parent-child relationships: The quality of the relationships between each parent and the child will be evaluated.

ν Co-parenting ability: The evaluator will assess the parents’ ability to collaborate to raise their children together.

ν Mental health and substance abuse: The evaluator will assess the impact of a mental health condition or substance abuse on the parent’s ability to care for the child.

 

 

ν Domestic violence: If there are allegations of domestic violence, the evaluator will investigate and assess the risk to the child.

See https://www.jaacap.org/article/S0890-8567(11)00883-5/fulltext

Remote Evaluations

In recognition of the geographic mobility of the modern family, New York State Courts have established protocols for conducting remote forensic evaluations in child custody matters. Such evaluations may be authorized when the child resides farther than one hundred (100) miles  from the New York State border. N.Y. Dom. Rel. Law §240(1)(a-3)(5).

In these circumstances, the evaluator is obligated to take all reasonable measures to ensure that the confidentiality and privacy of the child’s participation are preserved throughout the remote evaluation process. Id.

Guidance for Parents Participating in Forensic Evaluations

Parents involved in a forensic evaluation should be aware of certain tips to ensure the evaluation process proceeds smoothly and effectively. The following guidelines are advised:

ν Consult with a Family Law Attorney: Parents should seek advice from a qualified family law attorney to understand the process and their rights.

ν Honesty and transparency: Parents should be forthright in their responses and interactions with the evaluator to avoid any misrepresentation of facts.

ν Limit inquiries: Parents should refrain from posing questions that have not been directly asked by the evaluator.

ν Awareness of reporting: Parents should be mindful that all interactions with the evaluator will be incorporated into the final report and may be used in court.

ν Avoid disparaging the other parent: Parents should exercise restraint and avoid making negative comments about the other parent, as this can reflect poorly on their own parental fitness.

ν Seek clarification when necessary: Parents should feel empowered to request clarification of any aspects of the evaluation process they do not fully understand.

Jillian R. Falt, Esq., an Associate at Tully Rinckey, PLLC’s White Plains office, handles an array of family and matrimonial law matters. Her family law practice includes pre- and post-nuptial agreements, separation agreements, equitable distribution, spousal support, child support, post-judgment modifications and enforcement, family offense matters, and child custody and access. She represents clients in all aspects of settlement, litigation and the negotiation and drafting of agreements. To reach Ms. Falt or another family law attorney call (888) 529-4543.