You can request almost anything you like in divorce court, but it doesn’t necessarily mean that the judge will grant it to you. You must have a legitimate basis for your request and something important must be at stake. Even if the court does obligate your spouse to undergo a mental health evaluation, it may not be with a psychiatrist, but with a psychologist or even a social worker instead. The court’s purpose is not to get her the best treatment possible, but to identify issues for the judge within a divorce or custody case.
Requesting an Evaluation
Although the judge can order a psychiatric or psychological evaluation on his own, it’s more likely that you would have to file a motion as part of your divorce proceedings, bringing a potential problem to his attention. You would have to explain why you think an evaluation is warranted. Your spouse’s mental health is most likely to have an impact on the judge’s custody decision. It’s not likely to affect property distribution or support, at least not in the way you might hope.
If your spouse is mentally ill and unemployable, you could face an alimony order; if you live in an equitable distribution state where marital property is not always divided 50-50, the judge could award her additional assets if she's unemployable. In a custody matter, you would have to establish that your spouse’s mental health is such that it might threaten the best interests of your child if she were given custody. This would typically require citing and proving incidents and circumstances under which she behaved in a less than rational or responsible manner. The judge must feel that an evaluation is warranted to help him make the best decision.
Choosing the Evaluator
If the judge grants your request, the next challenge becomes choosing a professional to perform the evaluation. In some states, the court will allow you and your spouse to choose someone by agreement, but your spouse – or his attorney if he has one – will probably have very strong feelings about this, and you may not reach a middle ground. If this happens, the judge might ask each of you to submit a list of doctors who you find acceptable. The judge would then choose someone from these lists, or he could select someone on his own without any input from you.
Context of the Evaluation
The evaluation is not meant to identify whether your spouse has a mental illness. The psychiatrist or psychologist probably would not have time to accurately determine this in the limited scope of an evaluation. The idea behind an evaluation in a divorce situation is to pinpoint problem areas in your spouse’s behavior or mental health about which the judge needs to know because it could affect custody. The evaluation could – and often does – involve psychological testing. Interpreting these test results can be a tricky, specialized business, and it’s possible that the professional you or the court selects will enlist the help of an expert to do this.
Results of the Evaluation
When the evaluation is complete, the psychologist or psychiatrist submits a report to the court, detailing his findings and possibly making recommendations as to how he thinks the court should rule on custody. If he employs outside help to interpret testing results, the expert most likely would not issue an opinion or offer any input other than stating what the test results indicate. The evaluating professional would include the expert’s findings in his own report, however.
The judge might not base his decision entirely on the evaluation unless something particularly serious comes to light that would threaten your child’s welfare, such as a severe drug or alcohol dependency or a personality disorder. Otherwise, the report may be only one factor in her overall deliberations. You and your spouse should both receive a copy of the report before trial, and in some states, the court may allow either one of you to dispute the findings or get a second opinion.
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