"My husband is absolutely nuts! You can't reason with him. He needs to be on medication."
Every divorce lawyer has heard this complaint-- or versions of it-- in practically every divorce case. The process of divorce causes monumental anxiety in the parties and, consequently, the parties are not always on their best behavior. This, of course, does not mean that your soon-to-be ex-spouse needs professional treatment, medication, or a psychological evaluation. Many times, all that needs to happen is for the divorce to be finalized.
As will be set forth below, though, there are circumstances where the divorce court may order a psychological evaluation of one-- or sometimes both-- of the parties to the divorce.
When may the court order a psychological evaluation?
The Family Court is a “court of equity” and, therefore, the judge possesses broad discretion to make orders designed to further its mandate to make judgments that are “fair”-- that is, equitable. There is also specific statutory authority for the court to order a psychological examination of the parties. In deciding questions of custody and placement, Sec. 767.41(5)(am)7, Stats., requires the court to consider, “Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child's intellectual, physical, or emotional well-being.” Thus, where custody and placement are an issue in the case, so is the mental well-being of the mother and the father. Additionally, Sec. 804.10(1), Stats., provides that, “When the mental or physical condition . . . of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.”
The plain language of the statutes makes clear that the court need not order a psychological examination every time one party requests it; rather, “good cause” must be shown. However, there is very little law that explains what is “good cause” for requiring a psychological examination. In, Kettner v. Kettner, 2002 WI App 173 (Wis. Ct. App. 2002) the father appealed the trial court’s denial of his request for psychological examination of all of the parties. The Court of Appeals affirmed the trial court because the father was unable to establish that any of the parties, “[S]uffers from any psychological problems requiring psychological evaluation or treatment.” Similarly, the Court of Appeals noted that a court may order, as a condition of placement, that a parent seek psychological treatment; however, order to permit such an order, the evidence must “meet the same test of being necessary to prevent endangering . . . mental and emotional health.” State v. Alice H. (In re Shalynda S.J.), 2000 WI App 228 (Wis. Ct. App. 2000)
Thus, a fair reading of the law is that the Family Court may order a psychological examination when: (1) custody or placement is in issue; and, (2) there is reason to believe that one of the parties suffers from a mental condition that may negatively affect the child’s well-being.”
An affidavit, then, that alleges that your wife is unreasonable, she is constantly shouting, she will not return telephone calls, she is generally disagreeable and a pain-in-the-neck, will probably not succeed in getting the judge to order a pyschological evaluation. Neiher will a claim that your husband got drunk at his cousin's wedding, and made a fool of himself.
On the other hand, if it is true that a drug or alcohol problem has caused problems in your spouse's life-- such as a lost job or arrested for OWI-- a plausible argument can be made that there is cause for a psychological evaluation. Similarly, a documented history of mental illness may persuade the judge that an evaluation is necessary.
How are such evaluations used by the court?
It is important to understand that there is no doctor-patient privilege for a court-ordered psychological evaluation. If you are ordered to undergo such an evaluation, remember that the doctor is not there to treat you. Anything you say to him will be put into a report that will be filed with the court, and your spouse will have access to it. Therefore, you should not disclose anything that would incriminate yourself (you still have the Fifth Amendment right to remain silent). You should not lie to the therapist, but if you are asked questions that would require you to incriminate yourself, simply do not answer. Of course, refusing to answer will permit an inference that the answer would not have been favorable to your position.
In most cases, even where there is reason for the court to order a psychological evaluation, the doctor's report will be just one of many factors considered by the court in deciding the issues of custody and placement. Only in situations where there is profound mental illness (i.e. the parent poses a present danger to the child) will the court use the report to totally deny placement or custody; and these situations are usually so well-known to the parties that a psychological evaluation is not necessary, and such an evaluation is not very helpful.
The chances are that your spouse's crazy behavior will end when the divorce ends. But if you have reason to believe that your spouse's behavior is serious enough to endanger the children, do not hesitate to inform your lawyer. An experienced family law lawyer will be able to handle the situation for you.
