Custody evaluators can either be employees of the court or private practitioners appointed by the court. They tend to be either lawyers or mental health practitioners, though some have other backgrounds. It is rare, unfortunately, for courts to appoint evaluators whose primary professional experience is in domestic violence. In some states the custody evaluator is referred to as a “Guardian ad litem,” though this title does not make much practical difference in most cases. (In many cases, no evaluator exists at all, because neither the court nor the parents have resources to pay for one.)
The majority of custody evaluators proceed on the misguided assumption that the truth or falsehood of abuse allegations, and the level of risk to children from an abusive man, can be determined by interviewing the parties and seeing who sounds truthful. Evaluators who are mental health professionals add the dimension of “clinical evaluation,” which is equally unsound in sorting out domestic abuse concerns. If the clinical assessment indicates that the father has no major mental health problems, for example, the evaluator may declare that the abuse allegations must be false because the father doesn’t fit the “profile” of an abuser — even though the reality is that no mental health profile of an abuser exists. Extensive research and clinical evidence demonstrates that some very destructive abusers of women and children perform normally in clinical evaluations and psychological tests, but courts continue to ignore these findings.
The evaluator’s eye then turns to the abused woman. Because she is carrying the effects of many years of abuse, clinical assessment may suggest that she is actually the one with the greater problems. Tests may indicate that she has symptoms of paranoia, depression, histrionics (meaning that she exaggerates for dramatic effect), or mistrust of others — all symptoms that you will find present to at least some degree in most women who have been traumatized by abuse, especially when the women now has the additional stress of fearing that the court will forbid her to protect her children. But these predictable symptoms of abuse are used by many evaluators as evidence that her allegations of abuse are false, and that the main risk to the children is actually the mother’s mental health.
In recent years, both custody evaluators and abusive men themselves have developed increasingly distorted reasoning for blaming abused mothers for their children’s reactions. Mothers who take appropriate protective steps — such as reporting to the court what their children have told them about incidents during visitation — can get labeled as guilty of “parental alienation”. Children’s detailed and explicit disclosures of sexual abuse are sometimes dismissed with a quick wave of the hand by an evaluator or judge who declares, “The child is just trying to please the mother by joining her in her campaign against the father.”
I do encounter cases where the custody evaluator has caught on to the abuser’s mentality and tactics, and has taken seriously the risk to the children of being drawn in by him as pawns, but this outcome appears to be more the exception than the rule. So I recommend that you cautiously follow the steps below when dealing with a custody evaluation:
Don’t request or voluntarily accept the appointment of a custody evaluator unless you know who the evaluator will be, and know how that person has dealt with other abuse cases. Abused mothers often feel, understandably, that as soon as a trained professional looks carefully at the facts and sees the effects on the children, he or she will of course stop letting the abuser get away with what he’s been doing, and will allow the mother to protect her children. But the reality is often otherwise. More often than not, custody evaluators are committed to the belief that children must have extensive involvement with both parents, and often refuse to look carefully at evidence of abuse.
Proceed with caution even if you are told, “This individual is known to be trained on domestic violence;” some custody evaluators present themselves publicly as sensitive to domestic violence issues, while actually handling their cases irresponsibly. Be sure to talk to people who have actually dealt with the person’s evaluations directly before accepting their appointment.
If you have a lawyer, bring him or her to all meetings that you have with the evaluator. Some evaluators try to dissuade women from having legal representation at interviews — perhaps saying, “I just want us to have a relaxed, friendly conversation, and as soon as attorneys are present, everything gets much more adversarial” — and some lawyers are reluctant to attend, saying to the client, “Evaluators don’t like having attorneys present, and you don’t want to get the person irritated.” But the reason why evaluators don’t like having the attorney present is that they know they will have to be much more careful and professional about what they do, and will not be able to intimidate or manipulate the parent the way some evaluators do. Any evaluator who is professional and objective won’t mind having the lawyer in the room; and if the evaluator doesn’t meet that description, then that’s just all the more reason why you’d better have your attorney there.
Try to avoid inflammatory language. Many custody evaluators, whether male or female, are quick to label mothers as hysterical, too angry and bitter, incapable of separating their own feelings from their children’s, and out to cut the father off from the children. In this context, it is important for you to describe your concerns in calm, reasonable language. Express your willingness to support your children’s relationship with their father, but ask that steps first be taken to get him into proper services, including a high-quality abuser education program and any additional help he needs for substance abuse, mental health, or parent training. Explain that you want your children to have some times to catch their breath and some assistance with healing. Say that you believe your ex-partner will be a better father if he is held to some realistic measures of change and knows that he will be made accountable. Always talk of “our children” rather than “my children,” and speak of your concerns in terms of what each child needs, not what you want, even though the two tend to be the same.
Put a bad evaluator on the stand as quickly as possible. If you receive an irresponsible or biased report from your evaluator, move quickly to put the person on the witness stand and discredit his or her qualifications on domestic abuse and handling of your particular case. I find that the longer a bad report is allowed to sit unchallenged, the more damage it does; most judges proceed on the assumption that the evaluator is incapable of making any really serious mistakes unless they are shown otherwise. Powerful cross-examination is sometimes the only antidote.
Don’t give up. An unfavorable or biased report does not mean that the battle is over. Judges are sometimes willing to throw out some or all of an evaluator’s recommendations, especially if strong testimony is presented at a hearing or trial. In some cases, the abusive man agrees outside of court to terms that are better for the children than what the evaluator recommended, in order to avoid the expense and hassle of a trial and the possibility that the judge would see through him. Below, I address long-term strategizing further.