Cases involving the custody of children are undoubtedly the most difficult cases for family law judges. Instead of dealing with objective numbers—calculating the value of a marital or non-marital estate by reviewing bank and brokerage account records, tax returns, applications for loans, and other objective documents, or determining the correct child support figure by ascertaining a parent’s net income and then calculating the correct percentage, or even assessing the cost of the parties’ standard of living for purposes of fashioning a maintenance award—the judge dealing with child custody must instead evaluate the parents and children as people with complicated interpersonal relationships.
To aid the court in these difficult decisions, judges often appoint a custody evaluator who interviews parents, children, and other people important in the children’s lives, does psychological testing of the parents and children, and then writes a report giving an opinion as to which parent is better able to serve the best interests of the children. Often, these evaluators are licensed psychologists or psychiatrists who learn very personal details about the parents and children. While everyone involved in the case knows that the report is going to be presented to the judge and that the evaluator will have to testify about the basis for the recommendations in the report, no one expects the report to be disseminated beyond the case for which it was prepared. What happens, though, when a subsequent husband files a custody modification case involving the same mother but a child of the later marriage and wants to use the evaluator’s report prepared for the first case as evidence in the second?