After receiving an unfavorable result on a social investigation (also referred to as child custody evaluations in other states), parents often feel like they have no options and will be forced to accept the report the court appointed psychologist issues. Fortunately, in Florida, there are laws in place which allow parents to request that the initial evaluators work product be reviewed by a second licensed psychologist, in an effort to determine if there are any serious flaws, biases, method problems, etc., which should be present presented to the court through rebuttal witness testimony.
If there are legitimate concerns with the initial evaluation, a rebuttal witness with strong testimony skills may be able to highlight for the Court, where that are serious ethical violations or procedural concerns, and what areas of the report are considered appropriate and sound. Although this sounds easy enough, it is often very difficult for these mother’s and father’s to get their hands on the evaluating psychologist’s raw data from their file, which is necessary for the second psychologist to review the method utilized to come up with their parenting plan recommendations. From my experience in completing work product review work and rebuttal witness testimony, there are a variety of reasons court appointed psychologists are reluctant to hand over their files, even though they don’t truly have the ability to dent this request.
Reasons Court Ordered Social Investigators May be Reluctant to Hand Over Their Files:
- Candidly speaking, it is scary to think that someone, especially another psychologist, is about to pick apart your work. Psychologists realize that when our raw data is requested, there is someone actively looking for potential errors in content, methods, and interpretations of the information received. Although we sign up for this level of scrutiny when we enter the forensic arena, we are human and criticism still doesn’t feel good.
- Attorneys sometimes send psychologists very strong letters telling us that we have no authority to release their clients files, even though they are wrong, the psychologist may wish to wait and have the Court tell them that they have to release it.
- If a psychologist has a clinical/treating orientation, without much forensic experience, they often get stuck in the mode of wanting to maintain privacy and confidentiality. While this is wonderful for treating psychologists, it is simply not okay when a psychologist has been appointed by the court to do a social investigation (child custody evaluation).
If you are a parent who feels that they received a bias, inaccurate, poorly performed parenting evaluation, your best bet is to hire an attorney, who can then assist you in forcing the initial evaluating psychologist to release their entire file to another licensed psychologist. This second psychologist will then complete a work product review and potentially testify in court, as a rebuttal witness, about any reasons the judge may need to be cautious when considering the initial evaluator’s social investigation report and parenting plan recommendations.
Your attorney will need to specify that the initial psychologist needs to send the second psychologist (the one doing the review work) ALL available records for your case. This includes, but is not limited to, the following:
- All of the psychologist’s typed and hand written notes
- Email exchanges with the parents
- Email exchanges with attorneys
- Email exchanges with anyone else relating to this case.
- Parent and teacher questionnaires
- Initial standard paperwork (intakes, releases, policies and procedures)
- financial and billing records
- Court records/documentation
- Medical Records
- Mental Health Records
- Educational Records
- All other records provided by anyone at all relating to this case.
- Proper documentation from conversations with attorneys, parents, children, and collateral contacts.
- Any recordings or video taken or observed
- Deposition or hearing transcripts
- Psychological test results, computer print outs, raw data the opinions were based
- In addition to ANY and ALL additional information contained within the family’s file.
Please see the enclosed list of laws, rules, statutes, and psychologist’s mandatory ethical requirements, best practice protocols, etc., that psychologist’s appointed to perform social investigations are required to adhere to in the state of Florida. Hopefully this list will help shed light on the normalcy of this request, as unfettered access to the entire case file is the only way a competent work product review would be possible – Dr. Kristin Tolbert, Licensed Psychologist #PY8460
FLORIDA LAWS, RULES, ETHICAL REQUIREMENTS &
BEST PRACTICE PROTOCOLS
90.503 Psychotherapist-patient privilege.—
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
(3) The privilege may be claimed by:
- (a) The patient or the patient’s attorney on the patient’s behalf.
- (b) A guardian or conservator of the patient.
- (c) The personal representative of a deceased patient.
- (d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
(4) There is no privilege under this section:
- (a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
- (b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
- (c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.
90.705(2) of the Florida Evidence Code entitled “Disclosure of Facts or Data Underlying Expert Opinion” states in relevant part:
- Prior to the witness giving the opinion, a party whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness’s opinion.
- If the party establishes prima facia evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.
456.057 Ownership and control of patient records; report or copies of records to be furnished; disclosure of information.—
- 6. Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person’s legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. However, when a patient’s psychiatric, chapter 490 psychological, or chapter 491 psychotherapeutic records are requested by the patient or the patient’s legal representative, the health care practitioner may provide a report of examination and treatment in lieu of copies of records. Upon a patient’s written request, complete copies of the patient’s psychiatric records shall be provided directly to a subsequent treating psychiatrist. The furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered.
394.4615 Clinical records; confidentiality.—
- (2) The clinical record shall be released when:
- (a) The patient or the patient’s guardian authorizes the release. The guardian or guardian advocate shall be provided access to the appropriate clinical records of the patient. The patient or the patient’s guardian or guardian advocate may authorize the release of information and clinical records to appropriate persons to ensure the continuity of the patient’s health care or mental health care.
- (10) Patients shall have reasonable access to their clinical records, unless such access is determined by the patient’s physician to be harmful to the patient. If the patient’s right to inspect his or her clinical record is restricted by the facility, written notice of such restriction shall be given to the patient and the patient’s guardian, guardian advocate, attorney, and representative. In addition, the restriction shall be recorded in the clinical record, together with the reasons for it. The restriction of a patient’s right to inspect his or her clinical record shall expire after 7 days but may be renewed, after review, for subsequent 7-day periods.
395.3025 Patient and personnel records; copies; examination.—
- (1) Any licensed facility shall, upon written request, and only after discharge of the patient, furnish, in a timely manner, without delays for legal review, to any person admitted therein for care and treatment or treated thereat, or to any such person’s guardian, curator, or personal representative, or in the absence of one of those persons, to the next of kin of a decedent or the parent of a minor, or to anyone designated by such person in writing, a true and correct copy of all patient records, including X rays, and insurance information concerning such person, which records are in the possession of the licensed facility, provided the person requesting such records agrees to pay a charge. The exclusive charge for copies of patient records may include sales tax and actual postage, and, except for nonpaper records that are subject to a charge not to exceed $2, may not exceed $1 per page. A fee of up to $1 may be charged for each year of records requested. These charges shall apply to all records furnished, whether directly from the facility or from a copy service providing these services on behalf of the facility. However, a patient whose records are copied or searched for the purpose of continuing to receive medical care is not required to pay a charge for copying or for the search. The licensed facility shall further allow any such person to examine the original records in its possession, or microforms or other suitable reproductions of the records, upon such reasonable terms as shall be imposed to assure that the records will not be damaged, destroyed, or altered.
- (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
- (n) Failing to make available to a patient or client, upon written request, copies of tests, reports, or documents in the possession or under the control of the licensee, registered intern, or certificateholder which have been prepared for and paid for by the patient or client.
FLORIDA FAMILY LAW RULES OF PROCEDURE
12.363 Evaluation of a Minor Child:
- In addition to the obligation of the expert to prepare a written report the evaluator psychologist is obliged, upon motion of any party, the court may order the expert to produce the expert’s complete file to another qualified licensed mental health professional.
- The Committee Note adds: “This rule is not intended to prevent additional mental health professionals who have not treated, interviewed, or evaluated the child from testifying concerning review of the data produced pursuant to this rule”
- The basis of the evaluator’s report (i.e., the complete records in the psychologist’s file) is subject to cross-examination by the parties, consistent with the rules of evidence.
- Additionally, there is nothing in the rule that limits the release of either parent’s communications, or records obtained about the parent from collateral (or outside) sources, and nothing to limit the disclosure of the child’s (or children’s) records or communications.
FLORIDA ADMINISTRATIVE CODES
64B19-18.004 Use of Test Instruments
- (3) A psychologist who uses test instruments may not release test data, such as test protocols, test questions, assessment-related notes, or written answer sheets, except ……
- (3) when the release of the material is otherwise required by law.
(b). 64B19-19.005 Releasing Psychological Records.
- (3) The psychologist’s notes pertaining to psychological services rendered ……can be released ……
- (2) when the release of the material is otherwise required by law.
(c). 64B19-19.006 Confidentiality.
- One of the primary obligations of psychologists is to respect the confidentiality of information entrusted to them by service users. ……. The only exceptions to this general rule occur in those situations when nondisclosure on the part of the psychologist would violate the law.
- (4) The licensed psychologist shall maintain the confidentiality of all psychological records in the licensed psychologist’s possession or under the licensed psychologist’s control except as otherwise provided by law.
64B19-18.007 Requirements for Forensic Psychological Evaluation of Minors for the Purpose of Addressing Custody, Residence or Visitation Disputes.
- Within this rule the APA Guidelines for Child Custody Evaluations in Divorce Proceedings”, effective July, 1994, and the “Specialty Guidelines for Forensic Psychologists ”, effective March 9, 1991 are incorporated by reference.
AMERICAN PSYCHOLOGICAL ASSOCIATION’S (APA) ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT
3.07 Third-Party requests for services
- When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (See also Standards 3.05, Multiple Relationships, and 4.02, Discussing the Limits of Confidentiality.)
3.09 Cooperation with other Professionals
- When indicated and professionally appropriate, psychologists cooperate with other professionals in order to serve their clients/patients effectively and appropriately. (See also Standard 4.05, Disclosures.)
9.04 Release of test data
- The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/ patient release, psychologists provide test data to the client/ patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/ patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law.
9.11 Maintaining test security
- The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.
AMERICAN PSYCHOLOGICAL ASSOCIATION (APA) GUIDELINES FOR CHILD CUSTODY EVALUATIONS IN DIVORCE PROCEEDINGS:
- The psychologist gains specialized competence, part A directs that “The psychologist also strives to become familiar with applicable legal standards and procedures, including laws governing divorce and custody adjudications in his or her state or jurisdiction”.
- The psychologist maintains written records: “All raw data and interview information are recorded with an eye toward their possible review by other psychologists or the court, where legally permitted. Upon request, appropriate reports are made available to the court”
AMERICAN PSYCHOLOGICAL ASSOCIATION (APA) FORENSIC SPECIALTY GUIDELINES
- C: forensic psychologists are “responsible for a fundamental and reasonable level of knowledge and understanding of the legal and professional standards that govern their participation as experts in legal proceedings.”
- D.: Reminds forensic psychologists that they have “an obligation to understand the civil rights of parties in legal proceedings in which they participate, and manage their professional conduct in a manner that does not diminish or threaten those rights.
ASSOCIATION OF FAMILY AND CONCILIATION COURTS (AFCC)
- As used in these Model Standards, the term “record” refers to the following documents relating to the evaluation: notes, recordings, pleadings and other court papers, assessment instruments and testing data.
- The term “record”, as used herein, applies to all notes, documents, recordings, correspondence in any form or on any medium, tangible, electronic, hand-written, or mechanical, that are specifically related to the evaluation being conducted. The term “record”, as used herein, includes, but is not limited to, all a) reports, letters, affidavits, and declarations; b) notes, recordings, and transcriptions that were created before, during, or after interactions with persons in connection with the evaluation; c) fully or partially completed assessment instruments; d) scored and un-scored raw test data, scoring reports, and interpretations; e) billing, expense, and income records pertaining to the services provided; f) mechanical, digital, physical or electronic print, film, photocopy, tape, audio, video, or photographic records; and, g) all other notes, records, copies, and communications in any form that were created, received, or sent in connection with the evaluation.
3.2 RECORD-KEEPING OBLIGATIONS:
- Child custody evaluators have an obligation expeditiously to establish and to maintain a record-keeping system.
- (a) Evaluators shall establish and maintain a system of record-keeping and professional communication that is consistent with law, rules, and regulations, and that safeguards applicable privacy, confidentiality, and legal privilege. Evaluators shall create all records expeditiously. Unless laws, rules of the court, directives from the court, rules promulgated by regulatory bodies, or private policy specify otherwise, evaluators shall presume that their records are created, maintained, and preserved in anticipation of their review by others who are legally entitled to possess them and/or to review them.
- (b) Records of all aspects of the evaluation shall be created in reasonable detail, shall be legible, shall be stored in a manner that makes expeditious production possible, and shall be made available in a timely manner to those with the legal authority to inspect them or possess copies of them. Excluded from the requirements alluded to in the foregoing discussion of records production are items that may be protected from disclosure by copyright laws.
- (c) Where the policies of private agencies conflict with the requirements of law, rules of the court, directives from the court, or rules promulgated by regulatory bodies, the role of private agency policies shall be considered subordinate.
3.3 ACTIVE CONTROL OF RECORDS: Child custody evaluators shall maintain active control of their records and shall take reasonable care to prevent the loss or destruction of records.
- In creating and organizing their files, evaluators shall conceptualize all items pertaining to a particular case as elements of one file. Evaluators shall be mindful of the fact that distinctions often made in clinical contexts between progress notes and process notes or between a client’s file and a treating practitioner’s personal file are distinctions that are not recognized in child custody work. Evaluators shall maintain active control over records and information. Regardless of the form in which information is presented, once evaluators take possession of an item, it must be retained and reasonable care must be taken to prevent its loss or destruction. For example, evaluators shall not return items to litigants or others unless such return has been authorized by the attorneys for both litigants or by the court. [Refer to Note 3.3.]
3.4 DISCLOSURE AND/OR RELEASE OF RECORDS: Child custody evaluators shall establish policies regarding their procedures, including procedures for the release of information and payment of fees.
- In describing their policies, procedures, and fees, evaluators shall address all issues pertaining to access to the records that are maintained by them. Evaluators’ policies concerning the release of information and/or copies of portions of their files shall be guided by the policies and directives of the courts for which the evaluations are being or have been conducted.
We want to know what your experience has been! Were you able to get the files? Are you still navigating the system? We would also love to receive comments that list any other rules and regulations we may have missed on this list, that way families have a better shot at demanding transparency in child custody evaluations!
Dr. Kristin Tolbert is a licensed psychologist who specializes in forensic psychology within the family and dependency courts. She performs work product reviews across the country, oftentimes finding ways to assist attorneys “behind the scenes” without ever being disclosed to the other side. Please have your attorney call us today if you believe your child custody report was bias, unethically performed, full of inaccuracies, or was not done with your child’s best interest in mind. Dr. Tolbert or another qualified expert will be happy to take your call for a brief consultation to discuss ways we may be able to assist with your case.
*The information provided is not intended to be viewed as legal advice. This article was written by a psychologist; therefore, it is strictly intended to highlight some of the rules and regulations that Florida psychologists must adhere to when acting in a forensic capacity. The author recommends that you hire an experienced family law attorney, and if deemed necessary, consider also hiring a mental health/trial consultant with the support and guidance of your lawyer.