In many, if not most contested paternity or divorce cases, the issues that led up to the breakdown in relationship are somewhat apparent and would not require a forensic psychologist evaluation. For instance, one parent may lose his job, and this creates untenable financial stressors on the other parent, or the parent who lost the job may slump into depression. Perhaps most common in marriage today is; marriage is not a necessity as it was a few decades ago—to survive—given social programs that have created safety nets that did not exist in the past. Marriages now are viewed in years (sometimes months) not life. In cases where the relationship just did not stand the test of time, like these examples, the lawyers and judge can usually assemble an evidentiary picture of the relationship, so the judge can determine child custody in the children’s best interests (and division of assets in divorce cases).
However, in a small percentage of cases, the issue is subtle; and the parent who is having the issue creating the breakup, and who may not be the best parent for custody, can “turn it on” or “turn it off” and the judge may not see the real picture of the person. Risks can result during the paternity trial, the trial may only last a few hours or days, and the judge might not be able to assess and determine the “true” side of that parent and what is really important to the custody decision. This blog explores four common scenarios where this situation may exist and necessitate a party to conduct a forensic custody evaluation to make recommendation to the Court—from the psychological standpoint--on what custody and parenting time is in the children’s best interests; legally this may make your case more difficult. You may identify that your situation is this type of case. If so, you should seriously consider a forensic custody evaluation.
The first issue comes with legal and illicit substance abuse. In Indiana, anyone who is in touch with the news media has keyed in upon the opioid abuse crises. The use of methamphetamine and heroine are also at epidemic proportions. Most seasoned divorce attorneys have handled a divorce where one spouse has secretly been purchasing thousands of dollars of illegal drugs and using them without being detected until some sentimental event, such as being caught embezzling money from work to fund the proceeds. If that spouse has been the primary care giver during the marriage, even while addicted, it is sometimes a hard argument to make against custody in court that he or should not have primary custody if that parent has not appeared to be limited in his or her parenting to day. Without identifying this, it may obscure the evidence the judges receive and the “it is only a matter of time” legal point that the child are or will be harmed by custody in the addicted parent and may affect the outcome of your case.
However, with a forensic custody evaluation, psychological testing, interview of the children and parents in different settings, and gathering collateral data (police reports, work records, interviewing third parties, medical records)1, the evaluator is likely best able to identify the sometimes very subtle, but profound implications, that the addiction is having on the children’s best interests. Furthermore, and of extreme importance to courts, are recommendations by the forensic evaluator of what the risks are, it could order the addicted parent to have custody or parenting time with the children in a safe way in the children’s best interest. Ultimately, a forensic custody evaluation gathers evidence that would be difficult to present directly in court and reduces it to report for the court to relay, from a psychological standpoint how the addiction is impacting the children; this assists the court in identifying the problem and then making a custody evaluation in the children’s best interests.
Secondly, about 25% of the adult population in the United States has mental illness at any one time. In the context of divorce, some parents believe this decides their case—the other parent is mentally ill, and can get custody and the other parenting time or supervised visitation. However, that is rarely the case. Some mental illnesses are well managed by psychotherapy and medication; some are not. Furthermore, some parents with mental illness feel better and stop going to treatment or quit taking their medications in a predictable cycle (somewhat common with bi-polar disorder). Thus, the question in a divorce relative to custody is not whether the parent has a mental illness, but how it impacts his or her ability to act in daily life and be an involved parent. This range is broad. It can be a hard story to tell in a cohesive way the details of your spouse’s mental illness and how it impacts his or her ability to provide care for the children. However, with a forensic psychological evaluation, the evaluator is (presupposing that is the case) able to recount the past, present and future as it relates to what is in the children’s psychological best interests and the short- and long-terms issues parenting will likely create for the children. This is how you make your custody case where there is a mentally ill parent and it significantly impacts parenting.
As you might guess what is third on this list, is alcohol abuse. Alcoholism is rampant in America and there are AA meeting literally going on across the State of Indiana every day. The considerations and analysis with alcohol abuse is similar or sometimes the same for substance abuse. Sometime alcohol abuse is used to make underlying mental illness by blunting its daily effects on the person suffering with one or both diseases. Like mental illness and most of the issues identified in this blog, the disease may have little impact on your custody case or be significant. With alcoholism, stand alone, such as those with a dual diagnosis, it is better understood in the psychological and legal realm. An alcoholic (say father) sober for 10 years is unlikely to carry much weight in a custody case, unlike alcoholic whose sobriety date was five days earlier. Nevertheless, alcoholism and other mental illness sometimes go hand in hand. Thus, if the mother or father has a longer sobriety period but is otherwise not functioning well in life, a forensic custody evaluation may be able to identify underlying issues and make connections to assist in your contested custody case. Likely, it is not in the best interests of the child that his parent be the primary custodian. Presenting and making this case without a custody evaluation is nearly impossible.
The fourth situation that may well involve mental illness and substance abuse--and where attorneys would often advise a forensic custody evaluation to assist you with your custody objective--is where a parent has significant compulsive behaviors, has been physically or mentally abusive, or has untreated, unmanaged issues in his or her past such as PTSD or sexual abuse. These tragic circumstances are hard to identify and assess outside a forensic custody evaluation (the psychological concept known to many is that the parent who has been abused as a child may become an abusive parent and their child will become the victim) but may demonstrate directly or indirectly harms to the children by the acts or events in their lives. This is a broad category, and one difficult to equate to which custody arrangement is in the children’s best interests. A custody evaluator can do this job, making recommendations to the court for the parents and children for therapy and what parenting is in the children’s best interests moving forward.
Ultimately, a forensic custody evaluation is one of many legal tools to be considered in any divorce or paternity case that has custody in issues. In more routine cases, despite the fact there may be significant acrimony over custody, Indiana’s stilled judges and lawyers can present this in the custody trial. Custody evaluations are not always a choice, but sometimes are the best legal tool to consider in order to determine what is in the children’s best interests when complex psycho-social issues are involved. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle all types of custody cases throughout the state. It is written to provide general information. It is not legal advice or a solicitation for services. It is an advertisement.
- Trying to gather this evidence for trial in admissible format may be impossible and quite costly and result in a divorce trial of unreasonable length. An expert does not have to rely on admissible evidence.