By Andrea Ziegelman, Esq. of
Moses & Ziegelman, LLP
I. Different kinds of forensic evaluations

Psychological Evaluation

Parental Fitness/Competency Evaluation

Child Custody Evaluation
II. Order of Appointment in Child Custody
Evaluation

Scope of Order of Appointment - what are
the issues the evaluator is being asked to
consider and evaluate and what are the
issues in dispute in the litigation?
(Decision-making authority, parental
access, alcohol or drug dependency,
mental illness, domestic violence,
relocation, interference with parental
access, etc.)


The Order of Appointment in the context
of the overall proceeding – prior custody
motions, decisions (interim and/or
final), statements made by Court both
on and off the record, etc.
Recommendations requested by Court
regarding parental access, decisionmaking, etc.

Documents and information provided
to evaluator; when must the client
and your office and opposing counsel
exchange them; ensuring compliance
with all aspects of the Order.
III. Purpose and nature of forensic
evaluation


Provides Court with information about
each child, each parent, parent-child
relationship, and other relevant factors.
Explain how the forensic evaluation is
used by the Court to assist in its
determination of the best interests of the
child.
IV. Explaining difference between forensic
process and therapeutic process



Forensic Evaluator is not providing
“therapy” to party litigant.
Waiver of Confidentiality.
Forensic report, notes, testing – nothing is
“off the record”.

Custody disputes place client’s
psychological functioning, medical
and mental health condition squarely
into issue.


Ensuring client cooperation with
requests by forensic evaluator for
signing releases/providing requested
information. Is it ever proper to object?
Drug and other testing may be
required/requested.
V. Explaining generally the forensic process
to the client:



Individual parent interviews
Information often elicited during
evaluation from each litigant and of third
parties/collaterals
Parent-Child interviews (in-office and
home visits)



Parent-parent interviews (when it is
improper/objectionable)
Collateral interviews (typical collateral
sources)
Selection of collaterals by parent/
litigant


Selection/requests for collateral
interviews by forensic evaluator
Psychological testing
VI. Use of Mental Health Consultants

Education and support; assistance in
dealing with client anxiety and uncertainty
during and about forensic process.

Debate over recommending
therapeutic or other interventions
during evaluation (i.e. therapy, anger
management, parenting classes). What
is the underlying reason for it? When
is it legitimate and when is it not?


Debate over what is and what is not
appropriate for consultant to do when
working with parents/litigants.
Consultant-client communications
may be outside of the scope of
protected work product and/or
privilege.
VII. What is acceptable and not acceptable
for attorneys to do when preparing and
counseling clients before and during
custody evaluations

Read literature. See paper presented by
Jonathan W. Gould, Ph.D. for the 2013
Conference on Advanced Issues in Child
Custody: Evaluation, Litigation, and
Settlement.

Wide differences of opinion in legal
and mental health community on the
appropriateness of preparing clients
for evaluation.

What is non-controversial:
litigant/parent must tell the truth and
be forthright – same guidelines apply
to deposition and trial testimony,
client affidavits, etc.

Litigant/parent should not exaggerate or
mislead evaluator, including in respect of
parental strengths, involvement with
various aspects of child’s life, other
parent’s weaknesses, physical or
emotional abuse, or any other issue. Lack
of credibility will become apparent during
third-party or children’s reports and
clinical observations, as well as through
submission of other evidence, including
client’s cross examination during trial.
o Credibility is enhanced where client can
corroborate reporting of events, issues, etc.
o Sources of corroboration – use of
documents/parent e-mails and letters, affidavits,
court transcripts, other records (i.e., school
attendance records where lateness is an issue,
medical records, attendance at child-related
events; neuropsychological evaluations and IEP
evaluations where parental involvement is noted,
etc.); use of collateral third-party
sources/interviews, including teachers, doctors,
children’s therapists, parents’ therapists,
nannies, other (preferably unbiased) third-parties
familiar with individual family members,
including children, over extended period.
o
Opposing counsel may seek to use at
trial unfavorable or contradictory
statements made by, or about, your
client during forensic process.


Presentation of clear, cogent picture of
parenting ability; parent-child
relationship; involvement of parent in care
of, and decisions relating to, child.
Collection of concrete and focused
examples to illustrate points and
important themes.

Staying on track, being focused,
offering pertinent information – what
are the most important “themes” to
get across to evaluator?

Being responsive to evaluator’s inquiries
and questions.
o Current professional debate over
assisting parents in presenting and redefining issues, identifying and/or paring
down examples of parenting, parentchild interactions, etc.


Ability to present fair and balanced
assessment of one’s parental strengths
and weaknesses and other parent’s
strengths and weaknesses.
Avoidance of bad-mouthing of other
parent during evaluation versus giving
examples of behaviors of other parent
that have materially impacted child in a
negative way or interfered with client’s
access to, or relationship with, child.

See AFCC Task Force’s identification of
17 acceptable practices in connection
with preparing parents for custody
evaluations. See pages 28-29 of paper
presented by Jonathan W. Gould, Ph.D.
for the 2013 Conference on Advanced
Issues in Child Custody: Evaluation,
Litigation, and Settlement.

Understanding child’s developmental
needs; educational, physical, and
emotional needs; special needs, if
any, of child and how such needs
affect client’s parenting and ability to
co-parent.


Inappropriateness of coaching client.
Debate over what constitutes
coaching versus appropriate
preparation.
Inappropriateness of rehearsing
answers and preparation for
psychological testing