Confidentiality of Custody Evaluations

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?

That very issue arose in Johnson v. Weil, 2011 WL 681684 (Sup.Ct., Feb. 25, 2011), in which the Illinois Supreme Court affirmed an appellate court decision holding that a custody evaluation prepared by a mental health professional is not a confidential document because the professional and the parties were not engaged in a therapeutic relationship.  While the applicable statute requires the disclosure of the report in only the particular proceeding for which it was prepared, a companion statute authorizes the court to appoint an investigator to look into the custodial arrangements for a child by consulting any person with relevant information about the child and parents, including the evaluator from the previous case who wrote the report that contained detailed information about the mother, father, and their child.  That information about a parent from the earlier case is relevant to an assessment of that same parent’s child rearing skills and may be presented as evidence in custody litigation involving the child of a subsequent marriage if presented by the court-appointed investigator.

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