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MANDATED CUSTODY EVALUATIONS AND THE LIMITS OF JUDICIAL POWER

Authors


  • Mary E. O’Connell is a professor of law at Northeastern University School of Law in Boston, Massachusetts, where she heads the family law program. Her research and scholarship span a broad spectrum of practical family law issues, many with an interdisciplinary focus. During the academic year 2006–2007, she was a Visiting Scholar at the University of Massachusetts Medical School, where she worked with the professional psychologists and social workers of the Child and Family Forensic Center. Along with Professor J. Herbie DiFonzo of Hofstra Law School, she is also a coauthor of AFCC's 2006 report on needed reforms in family law education.

m.o'connell@neu.edu

Abstract

Kelly and Ramsey are clearly correct that a shift from a “how to” approach to custody evaluations to one that asks the more fundamental question “why” is long overdue. However, in addition to assessing the efficacy of custody evaluations (which Kelly and Ramsey propose), the legal system must also clarify the justification for imposing this extensive—and often expensive—intrusion into the privacy of parents. Three possible justifications for these intrusions are examined in this article: privilege, harm, and voluntariness. Is divorce a privilege, rather than a right, and can qualifications (including intrusive and expensive ones) be attached to requesting that privilege? Are custody evaluations instead justified as a means of avoiding harm to children? If a harm justification is asserted, exactly what harm do evaluations prevent, and how do they accomplish this harm avoidance? Finally, given the high value placed on parental cooperation by the family courts, is it simply too perilous for a parent to oppose a custody evaluation if one is suggested, either by the other parent or by the court? If so, are consents to custody evaluations truly voluntary?

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