In the Unpublished case of W.A., Jr. v. S.T., the mother appealed a decision by the trial court designated the father as primary residential custodian of the parties’ child J.T. The child had resided with the mother since birth and has ADHD.
The defendant argued and the appeals court agreed that an IEP serves a very different purpose than a best interests evaluation. The appeals court rejected her claim that she did not have the time or an opportunity to submit a best interests analysis.
An IEP is an academic plan which sets forth present performance, measurable annual goals, and short-term objectives or benchmarks. The IEP describes an integrated, sequential program of individually designed instructional activities and related services necessary to achieve the stated goals and objectives. A custody evaluation is an expert report where the court expects, and is assisted by, the independent professional judgment of a licensed mental health expert. An IEP is focused on the child for academic purposes. A custody evaluation is focused on the child(ren) in the context of the family for purposes of a judicial determination of custody and parenting time. A custody evaluation may in fact take into consideration an IEP in its recommendations.
Generally, court’s favor a neutral mental health assessment to inform the court's exercise of discretion in deciding custody and related issues. Courts rely heavily on the expertise of psychologists and other mental health professionals. In Fehnel, the appeals court held that the trial court should have granted an adjournment for the parties to obtain expert psychological witnesses once it became evident, shortly before trial, that a true dispute over custody existed. The Kinsella Court quoted extensively from Judge Pressler's opinion in Fehnel, where she explained: There are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes, which result in greater impact on the lives of those affected by the adjudication, and which require a higher degree of attention to the properly considered views of professionals in other disciplines. That is why a probation department investigation and report is mandated by R. 4:79-8(a). That is also why the parties must be afforded every reasonable opportunity to introduce expert witnesses whose evaluation of the family situation may assist the judge in determining what is best for the children. There have been frequent doubts expressed regarding the viability of the traditional adversarial process as an appropriate dispute resolution technique in child custody cases. But as long as we continue to resort to that process, it must be permitted to function consistently with its highest potentials.
If you have a custody case where you have a child with an IEP, it is strongly recommended that you also seek to have a neutral expert prepare a report if the issues of custody and parenting time are going to trial. The attorneys at LaBletta & Walters are experienced trial attorneys who can assist you with the proper presentation of your case.