By: Alan Scott Funk
Appointing and Retaining the evaluator
Evaluators are usually appointed by the court at an initial hearing. Once contacted, most evaluators will send a questionnaire, request a fee deposit, and require a contract. PROMPTLY RESPOND. The evaluator may negatively view an inability to handle these simple tasks. Work with your attorney, complete the forms, and pay the deposit. Your attorney will probably want to send the documents filed in the case, and may also want to send a letter letting the evaluator know your position. DO NOT act without coordinating with your attorney.
Keep it Simple
When completing the forms, avoid angry or accusatory answers-just state the facts. Keep your answers short. You should make each of your major points only once and reserve the minor points and the long explanations until later.
Collateral Contacts
The evaluator will probably ask for collateral contacts. That just means they’d like to talk with witnesses that can support your position. Don’t overwhelm the evaluator with a list of 50 names. Three to five names of people who have seen your parenting skills should suffice. Teachers and doctors are often viewed as reliable and neutral sources. It probably won’t help the evaluator to talk with your mother and find that she loves you but doesn’t like your ex-spouse. Include close family if you have no other witnesses or the family has witnessed an incident that is being investigated.
The Interview: Dress the Part Act the Part
Make sure you put your best foot forward for the interview. The interview may be in your home, or at the evaluator’s office. Dress appropriately. If you are bringing a child, bring age-appropriate reading or other activities. Bring snacks and juice for toddlers. You are not just there to answer questions, but to be observed. Make sure you give proper attention to the child(ren). Giving spectacular answers to questions isn’t going to help if the evaluator observes you neglecting a child’s needs. This stuffs hard to fake. If you are not really comfortable caring for the child you probably should be looking to settle the case before the report comes out.
Tell the truth
You can lose all of your credibility by lying about some small detail. Stick to the truth and you cant go wrong. Your case may not be as great as you wish but lying will not only fail to make your case any better than it really is but can destroy any chance you have at reaching your goals. If you have to lie to reach your goals you need to set more realistic your goals. If you have misbehaved in the past, you should recognize that you were wrong and make a real commitment to behave better.
Do what you are told
If you are asked to sign a release for medical or other records you should do. If you have reason to believe the records will be trouble, you should review that with your attorney before meeting the evaluator. If you are ordered to a drug or alcohol evaluation or any treatment you should not argue about it. You will want to confer with your attorney before you enroll. Your attorney may want to hire a consulting expert to review the issues before selecting an evaluator.
Review the negative report
The report may be harmful to your case. Some reports are harmful to your case because they are accurate and well reasoned. Some reports are harmful because they are sloppy, wrong and poorly reasoned. You are probably not in good position to figure out which type this one is. You need independent advice. If your time with your kids is an issue you need an attorneys assistance. If you are going to need an attorneys help, it is far better to get that help early in the case, before you find yourself staring at a bad evaluators report.
Get the evaluators file
In Washington, you have a right to access the evaluator’s file. If the report is negative but accurate you should be looking to settle the parenting issues. If the report is negative and wrong you will want to go over the file and take the deposition of the evaluator. If the report can be shown to be in error, all hope is not lost.
What is in the file
See RCW 26.09.220(3) (See Appendix) and WAC 246-924-445 (parties are entitled to all underlying data and should request information prior to deposition and/or trial) a. The forensic history questionnaires b. Parenting history surveys c. Personal history checklists d. Personal problems checklists e. Notes from party interviews f. Observation sessions g. Child behavior checklists h. Children’s problems checklists i. Notes from child interviews j. Notes from all collateral interviews k. The collateral documents reviewed l. The informed consent documents executed by the parties m. The consent forms executed by the child (if child is 12 or older) n. Complete billing information including internal billing, the names and addresses of all persons whom the investigator has consulted o. Were audio or video recordings made? F. Issue Subpoena Duces Tecum for deposition – even if you already obtained a copy of file.
Deposing the expert
Every expert can be impeached based on: 1. Credibility (bias and pecuniary interest) 2. Prior conduct 3. Prior inconsistent statements 4. Hypothetical questions 5. Learned treatises, and the law 6. Reliance on incorrect or insufficient foundational information 7. Opinions of other experts Find out if the expert has anything to say that isn’t in the report Get the expert’s testimony on record a. so it can’t be changed or supplemented later and b. so the expert can be impeached with testimony inconsistent with deposition testimony Find out if the expert has anything to say that isn’t in the report Get the expert’s testimony on record a. so it can’t be changed or supplemented later and b. so the expert can be impeached with testimony inconsistent with deposition testimony.
Guidelines, Rules and Statutes that Apply
Learned treatises, the statutes governing parenting plans & guardians. Guardians and evaluators should be familiar with: 1. American Academy of Psychiatry & the Law Ethical Guidelines for the Practice of Forensic Psychiatry (Adopted May, 1987; last revised 1995) 2. The APA Guidelines for Child Custody Evaluations in Divorce Proceedings (1994) 3. RCW 26.12.175 187; 26.09.220; 184; 187 & 191, 4. The Guardian Ad Litem Rules (GALR’s) 5. WAC 246-924 (Psychologists in general) 6. WAC 246-924-445 (Parenting Evaluations – Standards) (See Appendix)
Administrative Code
Rules of ethical conduct for psychologist. 1. 246-924-352 Definitions 2. 246-924-353 Competence 3. 246-924-354 Maintenance and retention of records 4. 246-924-355 Continuity of care 5. 246-924-356 Impaired objectivity 6. 246-924-357 Multiple relationships 7. 246-924-358 Sexual misconduct 8. 246-924-359 Client welfare 9. 246-924-361 Exploiting supervises and research subjects 10. 246-924-363 Protecting confidentiality of clients 11. 246-924-364 Fees 12. 246-924-365 Assessment procedures 13. 246-924-366 Fraud, misrepresentation, or deception 14. 246-924-367 Aiding illegal practice 15. 246-924-445 Parenting evaluations Standards 16. 246-924-467 Limited services related to parenting evaluations.
Are the conclusions supported by the Facts?
The evaluator should be able to support each conclusion with the facts that are supplied and concrete examples of specific behavior that have been corroborated by multiple measures (WAC 246-924-445 requires it)
Alan S. Funk
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Wechsler Becker, LLP
701 Fifth Avenue, Suite 4550
Columbia Center
Seattle, WA 98104
(206) 624-4900| Fax: (206) 386-7896
