Complaints against Court-Appointed Custody Evaluators: A Change in the Process

by Annette Burns on June 9, 2015

Apologies in advance; this is a really long post.

Arizona Revised Statute 32-2081 is called “Grounds for disciplinary action” and it covers a situation where a court litigant wants to file a board complaint against a mental health professional who was appointed in the court case.    This is usually someone appointed to do a custody evaluation, or maybe act as therapeutic interventionist for the family.   [For simplicity, I’m going to refer to “custody evaluator” in the rest of this post.]   As one might expect, people involved in court litigation that affects their rights to see and raise their children are often not happy with the recommendation made by a custody evaluator or with the ruling made by a judge.    The person who comes out on the short end of a court ruling sometimes wants to allege that the custody evaluator did something wrong.

It’s important to remember that a court-appointed custody evaluator does NOT make final decisions about children; those final decisions are always made by a judge.  A custody evaluator makes recommendations to the court, after a review of the entire family situation and after speaking with the parties, the children, and often other people about the family.   The result from the custody evaluator is only a recommendation, not a court order.  The evaluator’s recommendations are submitted to the judge, and the judge later makes a final decision after considering that recommendation along with all the other evidence in the case.  The Arizona case DePasquale v. DePasquale emphasizes that the judge may not delegate his or her responsibility for making a decision to someone else.  That ruling was re-affirmed in Nold v. Nold (2013) and in  Christopher K. v. Markaa S.  (2013).

Once a recommendation is issued by a custody evaluator, the person who doesn’t agree with the recommendation may decide that s/he wants to file a board complaint against that professional.  Some board complaints have a legal basis, if the professional did not follow professional and ethical guidelines in doing the evaluation.   Some board complaints are made simply because the complainant thinks the professional got it wrong and that the recommendation should have gone the other way.   That second category of complaints is problematic, because the fact that a recommendation is made that favors one parent over the other doesn’t mean the professional did anything wrong.   It simply means that a recommendation was made, which is exactly what the professional was hired to do.  If the professional did in fact “get it wrong”, the judge is still the final decision-maker, and the person who disagrees with the professional’s recommendation still has the opportunity to show the judge why the professional was wrong.  This right to be heard by the judge is called due process.

For the last several years, the statute that covers board complaints against court-appointed mental health professionals has stated that the complaint about the professional must be filed with the judge first. This was based on the assumption that the judge in the case is in the best position to know what’s really going on with the case.   This judicial oversight of potential board complaints was sometimes referred to as “gatekeeping”, meaning that the judge could either open the gate to allow a board complaint to be made to the professional’s board, or the judge could close the gate if there was no evidence of a  substantial basis for the allegation that something was done wrong.  Arguably, without the gatekeeping function of the court, any litigant in court who is unhappy with a professional’s recommendation can immediately file a board complaint, which costs the mental health professional time and money to defend.

The statute regarding mental health board complaints was changed in 2015 and the changes will take effect July 3,  2015.  The judge in a case will no longer act as gatekeeper for board complaints.

The part DELETED from the statute is this:

The board shall not consider a complaint against 21 a judicially appointed psychologist arising out of a court ordered evaluation, treatment or psychoeducation of a person to present a charge of  unprofessional conduct unless the court ordering the evaluation, treatment or psychoeducation has found a substantial basis to refer the complaint for consideration by the board.

The part ADDED to the statute (ARS 32-2081) is this:

  1. A CLAIM OF UNPROFESSIONAL CONDUCT BROUGHT ON OR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT TO THIS SECTION AGAINST A PSYCHOLOGIST ARISING OUT OF COURT-ORDERED SERVICES SHALL BE INDEPENDENTLY REVIEWED BY THREE MEMBERS OF THE BOARD, INCLUDING A PUBLIC MEMBER. EACH OF THE THREE BOARD MEMBERS WHO ARE REVIEWING THE CLAIM SHALL INDEPENDENTLY PROVIDE THE BOARD’S EXECUTIVE DIRECTOR A RECOMMENDATION INDICATING WHETHER THE MEMBER BELIEVES THERE IS MERIT TO OPEN AN INVESTIGATION. IF ONE OR MORE OF THE BOARD MEMBERS WHO ARE REVIEWING THE CLAIM DETERMINE THAT THERE IS MERIT TO OPEN AN INVESTIGATION AS A COMPLAINT, AN INVESTIGATION SHALL BE OPENED AND SHALL FOLLOW THE COMPLAINT PROCESS PURSUANT TO THIS ARTICLE.
  2. THE BOARD MAY NOT CONSIDER A COMPLAINT FOR ADMINISTRATIVE ACTION IF THE COMPLAINT IS FILED AGAINST A PERSON WHO IS A LICENSED PSYCHOLOGIST AND WHO IS A MEMBER OF THE BOARD OR A STAFF MEMBER OF THE BOARD OR WHO IS ACTING AS AN AGENT OF OR CONSULTANT TO THE BOARD IF THE COMPLAINT RELATES TO THE PERSON’S PERFORMANCE OF BOARD DUTIES.

So now a litigant who disagrees with either the services or recommendations of a custody evaluator can file a board complaint directly with that professional’s board.    The Board has now, under the new statute, set up a three-member screening panel to see if the complaint may have merit.  This three-member screening panel essentially takes on the role the judge was previously handling, to screen potential complaints and see if the complaint is the result of someone merely being dissatisfied with the professional’s decision, or if the complaint actually involves some allegation of misconduct or violation of professional standards or ethics.    The standard of proof for the screening panel to use is stated as finding the potential complaint has “merit”, which is a pretty vague term.   That standard seems different from the court’s previous standard of “substantial basis” for a complaint to proceed to the board.   It remains to be seen how different the standard of proof is, and to see how the Board’s screening panel handles complaints.   If the screening panel finds that a potential complaint does not have “merit”, the complaint won’t go any further with the Board, and will presumably be dismissed.  If the screening panel finds that a potential complaint does have “merit”, the complaint process will proceed to the full Board for investigation and decision.

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