Experts in Custody Litigation – Best Interest of the Child?

Experts in civil litigation are those who can assist the judge or jury in deciding a certain issue because they have special knowledge or experience. An expert in a family law case involving children is usually a social worker, counselor or psychologist who can aid in the assessment of a parent’s ability to care for the child.




Counselors provide an important role in the process of a child custody case. Clearly, the process of having a judge or jury determine which parent should provide the primary care for the children during litigation is stressful for all members of the family. The Court may appoint counselors for the parents and the children or parents may select a preferred counselor during child custody litigation. The counselor listens to the concerns of the parent-client and provides guidance considering all issues presented.


In addition, after counseling with a parent over time, the counselor can provide their opinion to the Court regarding the ability of the parent to make good decisions on behalf of a child. A counselor can only offer an opinion regarding persons they have counseled and therefore cannot “compare” the parents unless they have counseled both parents. Further, counselors may not offer an opinion regarding the ultimate question of which parent should have custody of the child unless they have conducted a custody evaluation, discussed below. Children’s counselors may offer the children’s “hearsay” statements to the Court so that children are not required to directly testify about their custody and visitation preferences.


Custody Evaluators


Recent changes to the Family Code require higher standards for custody evaluations, regarding both the qualifications of the evaluator and the required procedure. Some courts frequently order custody evaluations in contested custody cases; however, neither judges nor juries are bound by the recommendations.


At a minimum, evaluators are required to visit the home of each parent, meet and contact collateral witnesses for both parents and meet with the children in the presence of each parent. Additional information must be reviewed by the evaluator including: 1) relevant school records, 2) physical and mental health records of each party to the suit and each child who is the subject of the suit, 3) Child Protective Services records, 4) criminal history information relating to each child, each party, and each person who lives with a party to the suit; and 5) any other collateral source that may have relevant information. In some circumstances, an evaluator may request psychological testing of the parents and/or children to assist in the assessment.


At the conclusion, the evaluator files a report with the court detailing the procedure followed in the investigation, listing all contacts made and offering an opinion to the Court regarding the best interest of the children.




Courts may require, or as mentioned above, custody evaluators may request a psychological evaluation be conducted on parents or children who are involved in a custody case. Psychological assessment instruments are tools built upon extensive research that evaluate specific areas of an individual’s psychological development and/or functioning. Fundamentally, these assessments tools are standardized measures of a sample of behaviors. While results from an assessment may be able to suggest likelihood of a future behavior, these tests are designed to be measurements of current behavior. A variety of testing tools may be administered depending on the facts of the case but the most common for the purpose of evaluating custody of children will include the MMPI and the PAI. The results of these tests, accompanied by the interpretation of the psychologist, can assist the Court in assessing how the person will parent the children.


Psychological tests have traditionally played a central role in child custody evaluations. Nevertheless, psychological testing, despite its usefulness, has the potential to be used in a misleading fashion. This is particularly true in that psychological testing conveys to the court a false sense of security about conclusions reached in the evaluation. In reality, psychological testing is an important piece of information in a custody evaluation, yet it should never be viewed as conclusive and must always be validated by convergent information from multiple sources.




At the End of the Day… Be careful what you ask!


The very nature of a custody dispute pits one parent against the other.   Experts called upon to assist the judge in picking the parent who should be appointed the primary managing conservator, upon completion, may drive the wedge even further between parents.   Keep in mind that this is the question asked of our counselors, social workers and psychologists – to assess which parent can provide the best environment for the child. However, if you asked these experts what outcome would truly support the best interest of the child, most would wholeheartedly advocate a healthy cooperation between parents, not disputes over custody! These experts provide tremendous help and guidance to the family during a custody dispute. The circular logic, if any exists, in assessments of children’s best interests for custody, is in our questions, not in their conclusions.




[1] Psychological Testing In Custody Evaluations Involving Substance Abuse And Sexual Accusations; Susan Rankin, J. D., Benjamin J. Albritton, Psy.D., ABPP, Murphy Foster, M.A.; State Bar Of Texas “Sex, Drugs & Surveillance”, January 9-10, 2014