Should Mental Health Evaluations Have a Role in Family Court

By Josh Hoff

One spouse is angry, the other is scared.  Both parties hire attorneys. One even brings in a mental health professional in an attempt to tip the scale in a child custody dispute.

Just how much influence do these mental health evaluations have in a child custody case? When the two parties in a trial become particularly adversarial, a mental health evaluator often enters the disagreement.  While it is rare for a mental health evaluator to appear at the trial, an expert very well may prepare a written report for submission to the court.  If the report is well-written, it is more likely to have an impact on the outcome of the case. 

The truth is, the weight of a mental health evaluation in a child custody case varies tremendously, with the judge in each case making the final determination.  Each judge does in fact know, however, that evaluators are often hired by one side or the other.  Bias may enter the equation, and judges know as much. 

In such cases, mental health evaluations are just one component in the much larger machinery of justice that has been set in motion.  There are other components as well.  The overall well-being of the child, for instance, is a factor.  If a child shows all the signs of good health, the court may be more accommodating in its assessment the parents.  The mental health of the child’s parents also needs to be considered.  One parent may very well be depressed but able to function in the role of a parent, while the other parent may suffer from a far more debilitating mental health condition that hinders their ability to perform as a parent.

The May 2005 issue of Family Court Review addresses the debate surrounding the role of mental health evaluation in child custody cases.  In an article by Timothy Tippins and Jeffrey Wittmann, the authors outline a model for what experts can justifiably present in a custody case – more specifically, the authors develop a four-level process that aims first and foremost to foster the best interest of the child.

According to their model, experts with sufficient training can offer family court judges admissible information at the first two levels – that is, level I, what the mental health evaluator observes, and level II, what the expert concludes about the psychological makeup of a parent, child, or family.  At level III, Tippins and Wittmann encourage operating in accordance with the conclusions grounded in empirical research within the discipline of psychology.  At Level IV, Tippins and Wittmann suggest that a recommended custody plan for the child would be inherently biased and, therefore, should not be admissible in court.  The plan thus acknowledges a place for mental health evaluation in a case, while implying the importance of limiting its admissibility in court.

Typically, however, if the court deems a parent unable to comprehend the scope of their role as a parent, it will try to protect the child.  Likewise, when the court does not trust a parent with a child, it might grant custody to the other parent and require supervised visitation.  It is important to note, however, that broad brush strokes are not employed in arriving at the final decision.  Rather, courts attempt to take into account the circumstances surrounding the case, enabling them to weigh psychological makeup on a case-by-case basis and adjudicate accordingly.

This tendency stems from the fact that there is no consensus about what constitutes mental illness, a term used to denote a problem that is fundamentally biological.  In some instances, perceived mental illness is in fact simply a matter of living.  For example, parents may be depressed but are still able to do what they need to do.  But a personality disorder, schizophrenia, and a bipolar disorder may pose more serious risks to the well-being of a child.  A bipolar parent, for example, needs to be treated, often with a combination of medication and psychotherapy.  The way for any parent suffering mental illness to be seen in the most favorable light in court is to be proactive and get into treatment.

Ultimately, the court will consider whether parents are able to put aside their own needs to take care of their children.  Furthermore, it is essential that a parent show the capacity to empathize. If so, more often than not, the impact of mental health evaluation will be just one of several factors contributing to the outcome of a child custody case.

Anatomy of a Background Check

Anatomy of a Background Check

George Santayana once wrote, “Those who cannot learn from history are doomed to repeat it.” For detectives and fathers these are words to live by.

Several years ago I received a call from a client who was a wealthy businessman. He asked me to do a background check on a man he was considering for a position as a personal liaison. My client wanted to be cautious because he was not only wealthy but a well known collector of rare documents. The personal liaison would have access to his home, office and much of his wealth. He told me he was sure everything would check out because the candidate was a retired Army Major and had handled the interview perfectly. After checking out the job candidate’s background I discovered he was never in the military and was recently released from prison havng served time for forgery, counterfeiting, and burglary. The subject’s modus operandi was obtaining jobs where there was access to valuables. The subject would then research the interviewer in order to obtain enough knowledge to ace the interview. Once hired the subject would forge, counterfeit, and commit burglary as evident in his criminal record. Needless to say my client did not hire the criminal and has not hired anyone without doing a background check since.

Background checks are critical in business, but they can be equally critical in divorce and child custody cases. Information on the mother, father, boyfriend or relative responsible for caring for the child can be very relevant, and always important. What is the most effective way to conduct a background check? Is there such a thing as an instant nationwide background check?

In most cases the answer is, no. However, there are some very effective and reliable methods to uncovering the background of an individual. Cost and time are almost always a factor and the information must be accurate especially if it is going to be relied upon to determine custody, visitation or employment. For these reasons, as well as others, it is important to understand the structure and anatomy of our court and criminal system and some of the problems inherit in both.

Investigators and the criminal justice system break down records into four categories:

1. Arrest Records – these are arrest reports prepared by law enforcement agencies.

2. Criminal Court Records – records compiled from local, state, and federal courts.

3. Department of Correction Records- prison records.

4. State Criminal Repository Records- arrest, criminal court, and Department Of Correction records.

There are currently two nationwide systems that are used for background checks. The first system is the FBI’s National Crime Information Center (NCIC) database. NCIC is the nation’s largest criminal justice database and is restricted to law enforcement only. This database compiles information from most of our nation’s federal, state and local courts. It is the responsibility of each court to report information to NCIC. Breakdowns in the reporting process compounded by lack of personnel available to do the reporting, creates errors in accuracy. NCIC currently stores 52.3 million criminal history files. Many counties do not or simply cannot report many of the lesser offenses committed in their jurisdiction. Most counties don’t have the capacity to report all offenses let alone update the information contained in the NCIC. Most misdemeanors are not reported. Modification of a felony conviction, probation or parole information or charge reductions and case dismissal may not even appear in the NCIC. A domestic battery conviction may not be important to a potential employer but may be of grave significance to a judge determining the custody of a child.

The second nationwide system is the National Criminal File (NCF). This database includes 60 million records. This system relies heavily on the State Repository Records which is just as poorly reported to as the NCIC.

The most reliable source of criminal information is individual county court records. Every person who is arrested for offenses ranging from loitering to murder has a file in the county court where they live. There are 4,086 counties in the U.S. In order to conduct a complete nationwide background check each county would need to be searched. This would be an almost impossible and ridiculous task. Many times an investigator is given a very short period of time to complete the investigation.

So how do we conduct a thorough background check on an individual or company? We must first learn a little about the person we are investigating. Most people only frequent counties where they live or work and some people never leave the county they live in. We need name, date of birth, social security number and any aliases used by the individual. Once we have the above information the decision needs to be made as to which counties to search. Since most courts keep records for a minimum of seven years, a seven year address history must be developed. This can be done a number of ways including; contacting relatives, utilizing old phone books, talking to the subject directly and in the cases of licensed private detectives, databases can help to determine this information. Sometimes as the investigation unfolds new information may lead the investigator in a different direction. A check of each of the local courthouses should be conducted. Any files identified for the subject should be manually reviewed and the identity of the person being investigated should be verified. For example, if an investigator is conducting a background on a James Roberts, date of birth 1/2/1950, and a person matching that description is identified in the courts system, the investigator should then pull the actual file which contains arrest reports, court orders and pleadings. On the arrest report the defendant’s social security number and date of birth usually appear. If it matches the social security number of the person being investigated, this would be one way of positively identifying James Roberts as the offender. In addition to court records, a check of sex offender, state criminal repository and department of correction records should be conducted as well.

While this process is time consuming, it is the only way to effectively know the criminal history of a subject. A professional investigator will then prepare a report on his or her findings for the client.

When looking for an agency to conduct a background investigation, it is critical to hire one that is licensed by the state in which they operate. This ensures the agency they are hiring is insured and one whose testimony will likely hold up in a court of law.

Criminals don’t always look like criminals and people that seem honest may be dishonest. When making decisions regarding employment, custody or business it is always better to be safe than sorry. By understanding the history of an individual, we can better assess that person’s integrity and ensure the safety of our assets. This includes our most prized possession: our children.

Detective Wayne Halick is a Licensed Private Detective and the agency director of Millennium Investigations, Inc.  http://www.dadsdetective.com/

You can e-mail Detective Halick at halickpi@sbcglobal.net. His agency is located at 358 W. Army Trail Road, Unit 140-355, Bloomingdale, Illinois 60108. Their telephone number is 630-543-7282.