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Problems with Parenting Evaluations in Custody Litigation

Posted by attorney Allen Glass

On June 26, 2011, the Seattle Times ran a front-page article detailing the simultaneous personal tragedy of the late forensic psychologist Dr. Stuart Greenberg and the systematic failure of the judicial system that propelled his career for over a decade. Dr. Greenberg grew to become a pre-eminent forensic psychologist in King County. The court appointed him to evaluate approximately 2,000 parenting evaluations. The newspaper article detailed how the judicial system failed to recognize the taint that attached to Greenberg’s evaluations. Three years after his death and the discovery of his misconduct, neither the courts nor the legislature have enacted any measures to redress the systematic failure.

The newspaper article detailed how parents embroiled in a parenting evaluation felt that they had to pay the Dr. Greenberg’s invoice, even if it was unreasonable, for fear that he would retaliate in the form of a negative opinion. To remedy this concern prospectively, the court should order that the appointed parenting evaluator abide by a specific budget, including the amount of time expected to be expended on standard subroutines. The order should provide that payment will be issued by the court clerk. If an unforeseen circumstance arises that causes the evaluation to go over budget, then the evaluator should be required to apply to the court to make the request.

Parenting evaluations are authorized by statute. “The court may seek the advice of professional personnel whether or not they are employed on a regular basis by the court. The advice given shall be in writing and shall be made available by the court to counsel upon request." RCW 26.09.210.

However, there are few regulatory guidelines of either the substance or procedure for conducting a parenting evaluation. RCW 26.09.220 provides only a broad a suggestive guide. “In preparing the report concerning a child, the investigator may consult any person who may have information about the child and the potential parenting or custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis." There are professional guidelines, by the American Psychological Association (APA) and the Association of Family and Conciliation Courts (AFCC), but they are likewise broad and largely suggestive.

The things normally done in a parenting evaluation consist of interviews of the parents and children; observations of the parent/child relationship, interviews of collateral contacts; review of relevant documents, including background reports; conduct of psychological or substance abuse testing, if indicated; and the draft the report.

Given the evaluation’s impact on a parent’s fundamental right to have a relationship with a child, the law provides few protections to the parent from the impact of a flawed parenting evaluation. The parent has the right to obtain a copy of the evaluator’s file and to cross examine the evaluator at the time of trial. RCW 26.09.220. An aggrieved parent is also permitted to file a response to the evaluation. RCW 26.12.175.

However, the aggrieved parent’s ability to respond to an allegedly flawed parenting evaluation often proves to be elusive.

Many aggrieved parents claim that the evaluator misquoted or quoted a source out of context, or was selective in stating the facts. The opportunity to correct the matter is often dire as the report is often delivered close to the date of trial. Pursuant to RCW 26.09.220(3), the report must be mailed out to the parents only ten days before the hearing, hardly a sufficient time for a parent to respond in a meaningful fashion. If the aggrieved parent has the opportunity to obtain the evaluator’s file, he/she is often presented with pages of indecipherable notes.

My observations and recommendations about the parenting evaluation process are the result of my participating in many parenting plan evaluations. I have been appointed a parenting evaluator and know first-hand the difficulty of the evaluator’s task, which is only made more difficult by a lack of clear guidelines. I have also represented clients embroiled in a parenting evaluation, and have experienced the frustrations from the parent’s point of view. I believe that both would be well-served by a clearly defined and transparent process. Obviously, the parent’s interest is more important than that of the parenting evaluator. The parent has to live with the result for a long time and it defines his or her relationship with their child. For these reasons, I find these cases to be the most challenging and rewarding ones I come across as a family law attorney.

An unedited version of this article is available.

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