High Conflict Custody Cases: Who Should Decide?

In difficult custody cases it is not unusual for parents to retain a psychologist to assess the family dynamics. Parents and child are interviewed, separately and together, and other people closely connected to the child, including grandparents, new partners, close friends and nannies may all be part of the process.

Often times the conflict between parents will be so great, the parents agree to appoint a custody evaluator and other times, on the court application of one parent, a court will order that an assessment take place.

Custody assessors, typically psychologists or psychiatrists, play a significant role in custody and access decisions across North America. Their opinions and recommendations can carry considerable weight when a court is asked to decide on a parenting plan for a child whose parents cannot agree on their own, although judges are never bound to follow their recommendations.

A recent case out of California is illustrative of the follies and foibles of turning pivotal decisions about one’s children over to experts and judges.

Mother Deborah Singer had custody of her five year-old daughter when Beverly Hills psychiatrist Dr. Joseph Kenan was hired to do a custody and access assessment. Ms. Singer’s estranged husband had barely seen his daughter in two years and was in prison for probation violations. Upon his release, he was facing additional felony charges.

Ms. Singer paid Dr. Kenan a retainer of $7,500.00. Before the completion of his custody report, Dr. Kenan advised Ms. Singer he required an additional $35,000.00 and would send a courier to her home right away to pick up a cheque for $20,000.00

Ms. Singer was alarmed by the doctor’s request and began to investigate him. She came across several websites and a Facebook page that sent her reeling. Under the names Joe Kegan and Joe Keegan she discovered sexually explicit photos including one of the doctor showing his bare buttocks. 

Other photos included one of a woman leaning over a mirror that had lines of white powder on it that she was inhaling with a straw. Another photo of the doctor showed him holding a banner that read “It’s snowing.” His Facebook page promoted unprotected sex and several gay porn sites including Rentboy.com.

She also discovered that several months earlier, police had attended at Dr. Kenan’s home in respect of a sudden death initially thought to be caused by a drug overdose. Later, the death was attributed to natural causes, but a meth pipe was found in his home.

Ms. Singer sought and received a court order removing Dr. Kenan from the case and her retainer was reimbursed to her.

Another concerned mother of an eleven year-old child who had retained Dr. Kenan also asked the court to remove him as the custody expert on her case, but in this instance the court would not, saying ” You want Dr. Kenan removed because of a goofy Facebook page? What has that got to do with anything in this court?” 

At least two important lessons emerge from this story. The first is that decisions about children are best made by their parents, not experts and not judges. In the Singer case, I query why a custody evaluation was required when Ms. Singer had raised her daughter and was the sole provider for her. I suspect that Ms. Singer was seeking to bar her child’s father from any contact with his daughter.

The second lesson arises from the disparate opinions of two California judges. One judge agreed that Dr. Kenan should not be involved in a custody assessment based on the evidence gleaned from the internet, while a second judge believed it was completely irrelevant.

After an investigation, Dr. Kenan was not disciplined as there was no evidence of professional misconduct.

As I often tell my clients, a lot of what happens in court depends on the experts you rely on and the judge you draw. 

Lawdiva aka Georgialee Lang

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