Child Custody Evaluations in Texas

If you and your spouse can not agree on a custody arrangement, then someone will do it for you. That someone is probably the judge. While divorce court judges know a lot about families and about your state’s legal perspective on what to consider, they may not be well trained in psychology, family dynamics, parenting and child development. For that reason, many judges welcome a report (in writing and/or as testimony) by an impartial expert. That report probably won’t be the only thing they consider, but judges often weigh the opinions of a credible expert quite highly.

Child custody evaluations can be a worry for Texas parents who are unable to agree during their legal separation/divorce. Among the more frequently asked questions are: Who does child custody evaluations? Why can’t my therapist do it? What exactly will happen? How much will it cost and who pays? These and other questions are practical issues, but whether or not you do get an expert evaluation, you should remember that while the marriage may be over, your job as a parent lasts forever. You might want to read more about child custody do and don’ts. Furthermore, readers may want to find out what to expect as some of the immediate problems lying ahead in divorce.

Parental Alienation Syndrome shared (joint) and split agreements

Joint (shared) custody refers to equal responsibility for the major decisions in a child’s life. Split custody occurs when siblings are separated, with different living arrangements. Parental Alienation Syndrome refers to the situation where one parent “poisons,” a previously loving relationship between a child and the other parent.

Who does child custody evaluations in Texas?

Although anyone might do a custody evaluation, in practice it is typically done by a psychologist, social worker, or psychiatrist trained in working with children and families. Your therapist will not be able to do a custody evaluation because it is a conflict of interest. Custody evaluators, when they are professional, do their best to remain fair and impartial. They prefer to work for both sides, and in any event need to see both the husband and wife, individually and with the children.

In addition to their training in their respective disciplines (they should be licensed), a custody evaluator should have a lot of experience in working with kids and families. They should also have advanced training in forensic (court and law-related) work since the skills required are quite different from those that are needed in therapy.

A psychologist is typically very well trained in human development, personality, motivation, and psychopathology, all of which come to play in custody evaluations. Only psychologists are trained in psychological testing, which can be helpful when one or more of the family members have special problems that need to be assessed. Sometimes, when the evaluation is done by a social worker or psychiatrist, they enlist a psychologist to consult for the psychological assessments that may be called for.

Custody Evaluations – What to Expect

A custody evaluation is often ordered by the court, and each side pays for half. You can certainly take the expensive route of getting dueling experts, but in any case, the expert won’t is able to say much about someone they don’t meet. IOn order to do a fair and professional evaluation, a custody evaluator must have access to both sides. Even when they only work for one side, they are obligated ethically to try to treat both sides fairly and in a comparable manner.

Typically a custody evaluation includes more than 20 hours of interviews and tests. Parents and adults are always interviewed in-depth, typically at least twice each. The interviews will cover everything from what’s right/wrong with your spouse as a parent, to your wishes for custody and how things are going now. Everything that might affect your children is fair game, however. Additionally, the evaluator will meet with your children, and the older and more mature the children are, the more time the interviewer will devote.

Observations of you and your children interacting are important. Many evaluators develop specific observations built around tasks, while others just observe.

Psychological testing will often be done of the parents if there are any serious questions raised about the mental health of one of the spouses. Since the evaluator has to be even-handed, both parents will get the same tests.

How much will a custody evaluation cost and who pays?

Custody evaluations can be expensive. Most clinicians charge their usual hourly rate (often 100-250 dollars/hour). For a typical custody evaluation, done in keeping with the standards of the profession, it should take close to 25 hours on a relatively straightforward case. In addition, some evaluators charge a different (higher)fee for court testimony and depositions. The total fee is often advanced as a retainer, (sometimes held in escrow).

Custody evaluations become especially expensive when both sides hire their own expert. If both parents can agree to use the same evaluation, then the process is often seen by all as much fairer, less stressful for the children (and parents), and of course half as expensive. In cases where the evaluator works for both sides, the two parties typically split the fee, either evenly or in some other way that both parties agree is fair and equitable.

What do the evaluators do for 25+ hours? (click here for an in-depth answer). Custody evaluations may include psychological testing, either of the children or of the parents. In any thorough custody evaluation, the evaluator will interview both parents, and also the older children. They will be certain to observe the parents on more than one occasion with the children, often in the parent’s home. Custody evaluators talk with teachers and therapists, friends, and family, and whoever may be useful in giving them the most accurate picture. They will review relevant documents, including the papers filed by both lawyers, and of course, they write a report and may testify before the judge, or give depositions.

Why can’t my therapist do it?

Many parents and even some lawyers assume that an expert is an expert and if a psychologist or other therapist is already working with you or your family, that it then makes sense to have the same person do the evaluation. They are wrong.

All professionals who do custody evaluations are aware that there are professional, ethical conflicts for individuals who evaluate and do therapy with the same individuals. These roles are very much in conflict. To be a good evaluator, you have to be very neutral, and your approach is investigative (as much a detective as a therapist). Rather than the understanding, supportive, empathic, and even advocative role that is the hallmark of good therapy, an evaluator needs to remain skeptical, and above all else avoid taking sides. While it is theoretically possible to do both, it would take a true acrobat to do both well. The likelihood of conflicts of interest arising in the two roles is so great that the professional literature, and the stance of professional associations like the American Psychological Association, clearly stress that a therapist should not do a forensic evaluation on the family they have treated.

It is easier, but still difficult, to go the other direction, that is for a custody evaluator to go on and do therapy. In that case, the usefulness of the evaluation in subsequent litigation would be questionable, and because of this and other problems, this is rarely done except in the role of a special master.

Does that mean that your therapist can’t testify? Well no. Your therapist should be operating confidentially, and they may well be reluctant to testify. If they have earned your trust and confidence, then they are probably more useful to you in their therapist role for support and understanding (you may need them later). Even if you waive your right to confidentiality, it sometimes feels very awkward to have your innermost thoughts and feelings discussed in public. If however, you insist on having your therapist testify, they still can not testify about the kinds of things that custody evaluators address (for information about what happens and what variables are looked at in a custody evaluation, click here.) When therapists testify in custody hearings, they are fact witnesses. That means they can only testify about things they have seen or heard directly. Their clinical inferences and much of the subtlety of therapy is typically inadmissible. On the other hand custody evaluators normally have considerable leeway, and are allowed for example to attend to hearsay (normally not admissible) when it is one of a number of relevant clinical factors.

What Do Child Custody Evaluators Look For?

Psychologists are trained to do psychological tests, and this testing often can tell you a great deal about your self. While you may be able to take some self-help kinds of psychology tests online on the internet, only a trained (and licensed) clinical psychologist is qualified (or able) to give you a comprehensive, well-selected battery of tests designed to get at the questions with which you a concerned. Dr. Berndt is the author of a major test of depression, the Multicore Depression Inventory (MDI) published by Western Psychological Services in Los Angeles. With Charles Kaiser, he also co-authored the children’s version of the same test (MDIC), although children wrote the bulk of the items. What are some of the questions a psychological test battery might address? One or more of the following are typical uses:

  • Intellectual functioning. IQ, knowledge, achievement, memory capacity, learning disabilities, Alzheimer’s and other dementias, and intellectual strengths and weaknesses, neuropsychological impairment.
  • Personality: introversion/extraversion, self-esteem, coping styles, defenses, complexes, conflicts, sexual and aggressive impulses, sensitivity, hardiness, proneness to stress, psychosis, sensation seeking, compulsivity, hysteria, Hypochondriasis, narcissism, borderline personality, personality disorders, creativity.
  • Psychopathology. Psychosis, Schizophrenia, Mania, thought Disorders, delusions, reality testing, Diagnoses according to DSM lV, Depression, Anxiety, Post Traumatic Stress Disorder, Alcoholism.
  • Career Interests.  Preferences as they match similar workers, Enterprising, Realistic, Social, Investigative, etc. 
  • Parental fitness, Custody Evaluations. Psychological test batteries are often given as a part of a custody evaluation. The main use of testing in this situation is to understand the strengths and weaknesses of an individual as they might relate to parenting. Another use of testing in custody evaluations is to understand any special needs that a child might have or developmental issues that might impact an aspect of the evaluation. Finally, when there is an allegation that one or another parent might have a mental illness that impacts the child, this is typically explored in the fairest way by giving the same tests to both parents. For more on custody issues in general, click here. Parental fitness is when the state wants to take sole custody of your child, and stop all visitations permanently. The state DSS typically has to present evidence strong evidence against you. Although the exact role varies from state to state, most often it includes a referral for evaluation of mental illness.

Texas Family Code 107.104

Sec. 107.004. ADDITIONAL DUTIES OF ATTORNEY AD LITEM FOR CHILD. (a) Except as otherwise provided by this chapter, the attorney ad litem appointed for a child shall, in a developmentally appropriate manner:

  1. advise the child;
  2. represent the child’s expressed objectives of representation and follow the child’s expressed objectives of representation during the course of litigation if the attorney ad litem determines that the child is competent to understand the nature of an attorney-client relationship and has formed that relationship with the attorney ad litem; and
  3. as appropriate, considering the nature of the appointment, become familiar with the American Bar Association’s standards of practice for attorneys who represent children in abuse and neglect cases, the suggested amendments to those standards adopted by the National Association of Counsel for Children, and the American Bar Association’s standards of practice for attorneys who represent children in custody cases.
    1. (b) An attorney ad litem appointed for a child in a proceeding under Subtitle E shall complete at least three hours of continuing legal education relating to representing children in child protection cases as described by Subsection (c) as soon as practicable after the attorney ad litem is appointed. An attorney ad litem is not required to comply with this subsection if the court finds that the attorney ad litem has experience equivalent to the required education.
    2. (b-1) An attorney who is on the list maintained by the court as being qualified for appointment as an attorney ad litem for a child in a child protection case must complete at least three hours of continuing legal education relating to the representation of a child in a proceeding under Subtitle E each year before the anniversary date of the attorney’s listing.
    3. (c) The continuing legal education required by Subsections (b) and (b-1) must:
  4. be low-cost and available to persons throughout this state, including on the Internet provided through the State Bar of Texas; and
  5. focus on the duties of an attorney ad litem in, and the procedures of and best practices for, representing a child in a proceeding under Subtitle E.
    1. Except as provided by Subsection (e), an attorney ad litem appointed for a child in a proceeding under Chapter 262 or 263 shall:
  6. meet before each court hearing with:
    1. (A) the child, if the child is at least four years of age; or
    2. (B) the individual with whom the child ordinarily resides, including the child’s parent, conservator, guardian, caretaker, or custodian, if the child is younger than four years of age; and
  7. if the child or individual is not present at the court hearing, file a written statement with the court indicating that the attorney ad litem complied with Subdivision (1).
    1. (d-1) A meeting required by Subsection (d) must take place:
  8. a sufficient time before the hearing to allow the attorney ad litem to prepare for the hearing in accordance with the child’s expressed objectives of representation; and
  9. in a private setting that allows for confidential communications between the attorney ad litem and the child or individual with whom the child ordinarily resides, as applicable.
    1. (d-2) An attorney ad litem appointed to represent a child in the managing conservatorship of the Department of Family and Protective Services shall, before each scheduled hearing under Chapter 263, determine whether the child’s educational needs and goals have been identified and addressed.
    2. (d-3) An attorney ad litem appointed to represent a child in the managing conservatorship of the Department of Family and Protective Services shall periodically continue to review the child’s safety and well-being, including any effects of trauma to the child, and take appropriate action, including requesting a review hearing when necessary to address an issue of concern.
    3. (e) An attorney ad litem appointed for a child in a proceeding under Chapter 262 or 263 is not required to comply with Subsection (d) before a hearing if the court finds at that hearing that the attorney ad litem has shown good cause why the attorney ad litem’s compliance with that subsection is not feasible or in the best interest of the child. Additionally, a court may, on a showing of good cause, authorize an attorney ad litem to comply with Subsection (d) by conferring with the child or other individuals, as appropriate, by telephone or video conference.