Many parents and even some lawyers assume that an expert is an expert, and if a psychologist or other therapist is already working with you or your family, that it then makes sense to have the same person do the evaluation. They are wrong.

All professionals who do custody evaluations are aware that there are professional ethical conflicts for individuals who evaluate and do therapy with the same individuals. These roles are very much in conflict. To be a good evaluator, you have to be very neutral, and your approach is investigative (as much a detective as a therapist). Rather than the understanding, supportive, empathic and even advocative role that is the hallmark of good therapy, an evaluator needs to remain skeptical, and above all else avoid taking sides. While it is theoretically possible to do both, it would take a true acrobat to do both well. The likelihood of conflicts of interest arising in the two roles is so great that the professional literature, and the stance of professional associations like the American Psychological Association, clearly stress that a therapist should not do an evaluation on the family they have treated. It is easier, but still difficult, to go the other direction, that is for a custody evaluator to go on and do therapy. In that case the usefulness of the evaluation in subsequent litigation would be questionable, and because of this and other problems, this is rarely done except in the role of special master.

Does that mean that your therapist can't testify? Well no. Your therapist should be operating confidentially, and they may well be reluctant to testify. If they have earned your trust and confidence, then they are probably more useful to you in their therapist role for support and understanding (you may need them later). Even if you wave your right to confidentiality, it sometimes feels very awkward to have your innermost thoughts and feelings discussed in public. If however you insist on having your therapist testify, they still can not testify about the kinds of things that custody evaluators address (for information about what happens and what variables are looked at in a custody evaluation, click here.) When therapists testify in custody hearings they are fact witnesses. That means they can only testify about things they have seen or heard directly. Their clinical inferences, and much of the subtlety of therapy, are typically inadmissible. On the other hand custody evaluators normally have considerable leeway, and are allowed for example to attend to hearsay (normally not admissible) when it is one of a number of relevant clinical factors.

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