DuPage County Divorce Lawyer Blog
Toxicity can exist in every case, particularly when it comes to cases involving children and the vindictive ex-spouse you share those children with. As one may imagine, or may have experienced, the vitriol exchanged between two parents can boil over to the point of being detrimental to the children. And themselves. And everyone else around them. Questions can then be raised as to the psychological state of the parents, in general. Why do they criticize the other parent? Can’t they see the children are being affected noticeably, possibly endangering their mental, moral, or physical health, or impairing their emotional development? Who is mostly responsible for the breakdown in co-parenting, and what is the best interests of the children from a medical standpoint?
A Doctor of Clinical Psychology may have the answers to these questions, and the Court may seek that doctor’s opinion to get to the bottom of these questions before the case goes to trial. Section 604.10(b) of the Illinois Marriage and Dissolution of Marriage Act governs the processes of interviewing, evaluating, and investigating children as well as parents and other collateral witnesses in cases that demand special attention due to the overwhelming prevalence of confrontation. Known as the “court’s professional,” otherwise referred to as a “604.10(b) evaluator,” this clinical psychologist is specifically tasked with offering an opinion as to the legal outcome which would be in the best interests of a child. The evaluator’s opinion is above and beyond the recommendations of a guardian ad litem, who is typically appointed prior to the retention of the evaluator. The guardian ad litem often provides the Court with an opinion as to whether to appoint an evaluator to provide a further opinion on the issues that may seem unresolvable.
In their evaluation, the evaluator is ordered to provide advice to the court in writing. The evaluator is also subject to cross-examination. Accordingly, the evaluator’s report must include, at a minimum, (1) a description of the procedures employed during the evaluation; (2) a report of the data collected; (3) all test results; (4) any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7; (5) any recommendations of the professional concerning the allocation of parental responsibilities or the child’s relocation; and an explanation of any limitations in the evaluation or any reservations of the professional regarding the resulting recommendations.
In comparing the court’s professional, appointed pursuant to Section 604.10(b), to the guardian ad litem, appointed pursuant to Section 506(a)(2), many question the rationality behind the appointment of an evaluator when they compare the applicable language of each statute. Both are seemingly tasked with testifying subject to cross-examination in court. The guardian ad litem can be ordered to provide a written report, not unlike the evaluator. Both are to provide the Court with recommendations regarding the best interests of the children after investigating the facts of the case and interviewing the child(ren) and the parties.
The difference is rooted in the weight of the words of a guardian ad litem, who is typically an experienced family law attorney, and the words of a Doctor in Clinical Psychology. the court may give more weight to the recommendations of the evaluator than to those of the guardian ad litem, especially if the parents’ or children’s mental health is at issue.
That is not to say that all hope is lost if you are on the unfortunate end of an unfavorable evaluation and report. The appointment of the evaluator and the submission of the written report are merely phases in the pretrial process. They are intended to build evidence in support of an outcome that ultimately will be decided by the judge at the end of your case, then affirmed or reversed thereafter on appeal, if further challenged.
The evaluator is not above the possibility of being contradicted either. The evaluator and his or her report are subject to scrutiny and opposition during the cross-examination process of your trial proceeding. Additionally, should you find yourself in a position to disagree with the evaluation and its results, Section 604.10 also grants a party the ability to rebut or provide more supporting evidence for their position via the appointment of a separate evaluator, otherwise known as the “party’s retained professional.”
The statute allows either party, upon notice and motion made within a reasonable time before trial (think far in excess of 60 days before trial), the opportunity to request such an evaluation to assist the court in determining the child’s best interests. the court may reject such a request if it finds that an evaluation is untimely or not in the best interests of the child(ren). The party’s retained professional will be treated as a controlled expert at the time of trial, and will be subject to the same cross-examination and impeachment process as the court’s professional.
Why hire someone to do a completely new evaluation? Well, nobody’s perfect, let alone the court’s professional, or the guardian ad litem for that matter. A party’s retained professional is an opportunity to paint the whole picture of a case, in which nuanced issues and intricate facts might have been missed by the court-appointed expert(s). The law allows you to present your best case at trial.
If you wish to discuss this article, or its subject matter, please do not hesitate to contact the professionals at Kollias, P.C. for a free consultation!