Custody Neutral Assessments Found to Be Not Admissible in a NJ Child Custody Case

Child custody cases can often be contentious, expensive, and lengthy. Because of this, New Jersey courts have developed programs like mediation to assist parents in settling their differences outside of the courtroom. The Custody Neutral Assessment Program exists in some areas of New Jersey, mostly in the southern part of the state, though it is not specifically provided for in the child custody laws in NJ. A custody neutral assessment is used in a child custody case if the parents fail to reach an agreement through the initial mediation process, and is thought to be a less expensive and less time consuming of a process than otherwise lengthy custody evaluations. The assessment process takes approximately 3-4 hours, and costs vary depending on the location, but cost around $1,000 to perform (each parent paying half of the cost), which is significantly less than other options.

The Assessment Procedure

The assessment itself is conducted by a licensed mental health professional such as a psychologist or social worker that is prequalified by the court to have the experience and skill necessary to conduct such an assessment. Despite the fact that mental health professionals perform the assessment, the assessment is not a psychological evaluation or testing, and does not involve treatment. The assessor meets with the parties to discuss the issues that cannot be agreed upon. The assessor will sometimes include the children or others involved in the family situation such as step-parents, if deemed appropriate considering the circumstances.

Scope of Assessment – Recommendations

At the conclusion of the interview(s), the assessor will prepare his or her recommendations about how to resolve the issues in dispute by the parents and deliver them to the court. The clinician’s recommendations may include parenting time and custody, as well as referrals for substance abuse evaluations, anger management classes, or related issues that are preventing the parties from agreeing on custody matters. The court will then schedule a case management conference and at that time determine whether it will accept, modify, or reject the recommendations of the evaluation. The recommendations are not binding on either party, each still has the ability to perform a full custody evaluation.

Arguments for and Against the Custody Neutral Assessment Program

The program has had its proponents and opponents in the years that it has been in existence. Proponents of the program are pleased with the cost savings available to parents who cannot otherwise afford any expert assessments in their child custody case and who can also not seem to come to an agreement that will settle their case. Opponents have argued that the relatively quick and non-intensive evaluations cannot render clinically significant recommendations from the assessors, and would not be admissible as evidence at a trial so they should not be given much significance during the child custody process. There are also questions about the procedure of the Custody Neutral Assessment under child custody laws in NJ, specifically about how binding the process can be.

Serrano v. Urbano – CNA Not Admissible As Expert Report

A recent case has dealt a potential blow to the Custody Neutral Assessment Program. In an unpublished (nonprecedential) trial court decision, the December 1, 2016 case of Serrano v. Urbano held that Custody Neutral Assessments were not admissible as an expert report under the child custody laws in NJ. Significantly, Judge Jones wrote in the opinion that,

“When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place.”

Essentially, the holding in Serrano is that the Custody Neutral Assessment (here abbreviated as “C.N.A.”) cannot be used as an expert opinion because no expert evaluation was performed.

Net Opinion Rule

The “net opinion rule” prohibits the admission of an expert’s conclusions as evidence when they are not supported by factual evidence. It requires experts to “be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.” The court in Serrano found that Custody Neutral Assessments resulted in, essentially, a net opinion which is not admissible as evidence.

Assessor’s Testimony May Be Admissible for Certain Purposes

The court held that the mental health professional who conducted the Custody Neutral Assessment could in fact testify about the information he or she was told by the parties and their conduct during the process, as well as give “any impressions and concerns the assessor experienced” as part of the process. This may be done under the doctrine of limited admissibility in N.J.R.E. 105

Effect on Future Child Custody Cases

As this case is unpublished, however it may be a sign of upcoming challenges and changes to the Custody Neutral Assessment Program. If you are involved in a child custody case in NJ, call the Law Offices of Peter Van Aulen today to discuss the best course of action for your particular case.

Sources

Serrano v. Urbano (December 1, 2006).

State v. Townsend, 186 N.J. 473 (2006).

N.J.R.E. 105

 

 

 

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