"Moving Beyond Daubert and Frye and the Standards for the Admission of Psychological Evaluations and Related Testimony in Child Custody Disputes" by David I. Grund

david_grund_thumb.jpgA number of U.S. Courts have established legal standards by which child custody evaluations are rendered (see 750 ILCS 5/604(b); 750 ILCS 5/604.5; and 750 ILCS/605). In large urban areas, psychologists and other mental health professionals typically perform child-custody evaluations. In smaller jurisdictions, attorneys conduct custody evaluations or GALs appointed by the courts. But regardless of whether a child-custody evaluation is performed by a mental health professional or a layperson appointed by a court, a consistent problem is that few states have adopted standards by which custody evaluations are performed. Consequently, there are no uniform methods by which custody evaluations are performed. Indeed, in most states, there are no training, educational, or experience requirements by which evaluators are selected; nor are there rules in place which mandate the do’s and don’ts of such things as ex parte  communication, procedure, data gathering, scope, testing, or admission of expert testimony.

The American Academy of Child and Adolescent Psychiatry (AACAP), the American Psychological Association (APA), the Association of Family Conciliation Courts (AFCC), and the American Academy of Matrimonial Lawyers (AAML), have developed guidelines and standards for child-custody evaluations.

For example, the APA revised its guidelines in February 2009. They consist of 14 individual guidelines that are aspirational in nature and not mandatory upon its members, nor are they intended to be either mandatory or exhaustive.

Likewise, in 2006, the Association of Family and Conciliation Courts (AFCC), an interdisciplinary group of attorneys, judges and mental health professionals with a shared interest in family law, published its revised Model Standards of Practice for Child Custody Evaluations. The purpose of the adoption of these standards was to contribute to the ongoing education of evaluators and to promote good practice so that the work done by custody evaluators may be publicly accepted.

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*Editor’s Note: The [foregoing] was delivered at Grund & Leavitt’s “Cutting-Edge Child Custody Symposium” prior to the enactment on January 1, 2016, of the new Illinois Marriage and Dissolution of Marriage Act. Mr. Grund acknowledges the assistance of Danielle Kestnbaum, who now practices law in North Carolina.