Is mental health a factor in fighting for custody?
The ways in which the mental health field interacts with family law are numerous. The three most common are frequently referred to as 604(b), 604.5 and 215 evaluations. The numerical title of these evaluations refer to the portion of the law that establishes the basis for the type of evaluation.
A 604(b) evaluation refers to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) , which states:
“The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court’s witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both. The court shall allocate the costs and fees of those professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate. Upon the request of any party or upon the court’s own motion, the court may conduct a hearing as to the reasonableness of those fees and costs.”
This provision of the statute is most frequently used to appoint custody evaluators. A custody evaluator can be appointed when the parties to a divorce fail to reach an agreement regarding custody, parenting time or removal of the child from the state of Illinois on a permanent basis. A custody evaluator is usually a licensed psychologist. A custody evaluation is where each parent and the child or children undergo a series of tests and observations by a mental health professional and the mental health professional writes a report for the Court including recommendations for custody, parenting time, decision making or removal of the child from the State of Illinois on a permanent basis. A custody evaluation is a process that can take months, involving multiple visits with the evaluator for the parties and the children. Custody evaluations usually cost several thousand dollars. The Court has the ability to divide the cost of this evaluation based upon the financial circumstances of each party. Court tend to give great weight to the recommendations of the evaluator, though a Court may either accept or reject the recommendations of the Custody Evaluator.
With regard to custody evaluations each party also has the ability to ask that their own expert be appointed to conduct a custody evaluation. These are frequently referred to as 604.5 evaluations. Section 604.5 of the IMDMA states as follows:
“In a proceeding for custody, visitation, or removal of a child from Illinois, upon notice and motion made within a reasonable time before trial, the court may order an evaluation concerning the best interest of the child as it relates to custody, visitation, or removal. The motion may be made by a party, a parent, the child’s custodian, the attorney for the child, the child’s guardian ad litem, or the child’s representative. The requested evaluation may be in place of or in addition to an evaluation conducted under subsection (b) of Section 604. “
604.5 evaluations most frequently occur when one party is unhappy with the results of a 604(b) evaluation and want to have a different custody evaluator of their choosing conduct a second evaluation. The process of a 604.5 evaluation is the same as for a 604(b) evaluation. Unlike a 604(b) evaluation the cost of a 604.5 evaluation is not divided, the entirety of the cost is bore by the party asking for a 604.5 evaluation.
Another evaluation where mental health professionals interact with family law is a 215 evaluation, named after Illinois Supreme Court Rule 215, which states:
“In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and on motion made within a reasonable time before the trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved.”
A 215 evaluation is conducted where the Court has a concern for the fitness, either physically or mentally, of a party. Generally, a 215 examination is ordered following the motion of the adverse party. Unlike a custody evaluation, a 215 examination is usually a one time visit to a licensed professional, after which the professional writes a report to the Court.
It is important to read our blog post regarding the Illinois Mental Health and Developmental Disabilities Confidentiality Act – Mental Health and the Law – to more clearly understand your rights and responsibilities with regard to mental health in the context of family law.
This is a legal advertisement from Sterk Family Law Group. It does not constitute legal advice and should not be construed as such. This article is for informational and educational purposes only.