In this episode, Brian Walters meets with licensed psychologist Dr. Daphny Ainslie to discuss child custody evaluations, including the different types of evaluations and how to file a motion for a child custody evaluation in Texas. Dr. Ainslie and Brian also detail the types of family law cases where evaluations may be necessary and how the evaluation process works.
Dr. Ainslie owns Ainslie Consulting, where she conducts forensic evaluations and consultations along with clinical/diagnostic assessment and psychotherapy in Austin, Texas.
Schedule a consultation if you have a family law matter you want to speak to an attorney about. If there is a topic you would like to hear on our podcast, email us.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters: Okay, thanks for tuning into the For Better, Worse, or Divorce podcast where we provide you tips and insight on how to navigate divorce and child custody situations. I’m Brian Walters, and today Dr. Daphny Ainslie from Ainslie Consulting is here with me. Daphny is a licensed psychologist in Austin who conducts forensic evaluations and consultations along with clinical and diagnostic assessments and psychotherapy. She does child custody evaluations and other court-related work.
I work with Daphny on several cases, and I thought she’d be a perfect guest to have on to discuss child custody evaluations in general. So, thanks for joining us today, Daphny.
Dr. Daphny Ainslie: Well, thank you for having me. Mr. Walters. I am happy to be here, Brian.
Brian Walters:You bet. Well, give us a little history of how you got here. And don’t just give us the boring academic stuff. Where did you grow up? What was your childhood like? How did you decide to get into where you are? So, tell us a little bit about yourself.
Dr. Daphny Ainslie: Yeah. So, I come from a very small coastal town in Texas.
Brian Walters:Which one, out of curiosity? Because that’s where my family’s from, that area, too.
Dr. Daphny Ainslie: Oh, interesting. I’m from Rockport, Texas.
Brian Walters:Yeah, my mom grew up and went to Aransas Pass High School. My dad, in Corpus. I have an aunt and uncle that live in Rockport. My parents live three miles from Rockport right now. They live in Aransas. So, small world.
Dr. Daphny Ainslie: It’s a small, good world and it’s even a smaller world down there. I mean, I couldn’t wait to get out of there, but these days I love going back. It’s really fun just to be very simple on the coast and enjoy some fishing and great seafood. My parents’ family, my dad’s family, in particular, has been there for generations. So, the salt is part of my history here.
How did I get into psychology? I had this really great high school teacher, and he was a psychologist. He taught my first ever class in psychology and at that point I was just captivated by it. I really liked how this is a field where we’re always learning and there is so much to be explored and understood. It’s really something to kind of meet people and then know there is so much behind all of us.
I’m so impressed by your opening question, “let’s really talk about yourself.” It’s funny that I hesitated, but I think that’s what we all do in some form. It’s not easy to be open all the time. So, I really liked psychology, and the history of it and how it’s a constantly evolving field. But in order to do the work that I do today in my practice or I’d say the majority of the work that I do today, which is evaluation, I had to have a history of assessment experience and training.
So, I began that when I was getting my doctorate education. I just sought it out and initially I was working with psychologists in San Antonio, which is where I completed my doctorate. I just found it really kind of another level of gaining data about someone, and then trying to interpret that and understand it, and then utilize that information against other information that’s collected.
Initially, I was doing academic assessments, and clinical assessments, and intellectual assessments. I did a lot of work with adults. Then, I also did some training, what would be like the old brown schools now. So, I got a lot of training with kid which was unique and special.
My first forensic work was actually at the San Antonio State Hospital when I did some competency work, and there was a judge there that came to the state hospital weekly. In part, it was my job as a practicum student to work with the individuals on the unit and give an opinion and recommendation about competency. It was there that I thought, “This is really something different. This is something unique.” I think the work that we all do, it’s all important, but I thought, “This is a different way of capturing what’s happening for someone.”
So, that’s kind of where I had my first forensic interest. And then, with the assessment experience, I thought, “This is something that I could do and grow and learn more about.”
Brian Walters:Yeah, that makes sense. I have an undergraduate degree in business, which has been helpful running a business, but I kind of wish I had had a more. I think I had to take one psychology and one sociology class as part of my undergrad, but I wish I’d had a lot more. I found those skills are more valuable to me. I’ve kind of had to learn in the hard way, in dealing with clients, other lawyers, other professionals and judges, just that psychology stuff. I would say to someone who has an undergraduate degree in psychology, it would probably be a good start if you’re going to be a family lawyer. Then maybe an MBA on top of it if you’re going to run your own firm. But that’s the skills I wish I’d had more of, especially earlier in my career. So, that’s interesting.
Let’s talk about child custody evaluations. In child custody cases, and that could be people that are married, or they never married and had a kid, or they’re going back to court to modify something that was done earlier. As a lawyer, I’ll say there used to not be anything real specific about that and they’ve now added a statute in the family code that allows for these. It’s got very specific requirements about what is to be looked at and what the qualifications are for folks. And so, what happens is, a court will decide, there needs to be one. Often by the request of both parties, but sometimes by one party. Or sometimes the judge just decides to do it on their own, and the judge will say, “I’d like to have one of these done to help me, or our jury, decide how we’re going to deal with this.”
So, can you talk a little bit about the child custody evaluations and how they work? What are they trying to do? And comparing and contrasting those maybe a little bit with psychological evaluations, psychiatric evaluations, how they’re similar, how they’re different?
Dr. Daphny Ainslie: Sure, good question. What usually happens on my side of it is, that the court and attorneys will figure out what’s needed, and custody evaluators generally enter the picture once it’s ordered. So, it’s very important for your clients, and participants in these evaluations to understand what that is. Typically, a custody evaluation follows the statute, or it should, so it’s really important, for custody evaluators, to know what’s in that statute to review it and to check for updates.
A perfect example is our regular legislative session just ended so it’s a good time to go back and revisit what changes might be taking place in September. So, that’s something that I’ve got on my calendar to keep an update about.
Brian Walters:Me too.
Dr. Daphny Ainslie: Yeah, because there will be changes, typically, or updates. And so, I guess, that’s in part, as what I was saying earlier, this is an evolving field. We’re always trying to do better, and I think that that’s really important to review.
You asked about child custody evaluations, specifically, in comparison to those that are forensic or psychological evaluations, kind of more generally. A custody evaluation, I really think about it as a very deep dive into the life of a family or a family system. As you said, that could be a divorcing couple that was married, and it could be people who were never married before and are trying to decide and agree or come to a decision about what’s best for the child or children. They could be trying to come to a decision in terms of how much time each of them gets with the child or children, how that is decided, and who will be the ultimate decider of that, which is typically a judge or a jury.
In order to get to those recommendations, a custody evaluator will make some recommendations. I think that’s the ultimate goal. I think that’s what the endeavor is, is to gather data, synthesize it, interpret it, and give those conclusions and recommendations to the court. To gather the data, that takes several steps and it’s a long process. I think that’s one thing I really want to underscore, that it really does take a lot of time. I think people would be surprised at how long it takes, but it is a process that you typically want done really well. You want it to be very thorough, and you want to have some solid conclusions and recommendations at the end of the process, which means time.
Typically, because of the time that it takes to complete them, it’s going to cost a chunk of money. So, that’s something I think people should be aware of and really think about when moving through this process, what it will take of them. I like to tell people that I evaluate, and it’s partly in my informed consent, that we’re going to be looking pretty deeply into your life. We’re going to want a life history. We want to interview you, typically, for several hours over a period of time.
Custody evaluations will gather data from collateral informants. That could be teachers, nannies, family members, or people who might be able to speak to questions about parenting, history, or questions about co-parenting for that matter. It’s also important to get a review of records. If there are any records that need to be reviewed pertaining to the parents or pertaining to the children in the family.
I’m a psychologist and I’ll do some psychological assessment. It’s not required by the statute, but it is an option of the statute. So, I think that’s something to remember, that there may be psychological assessment taking place in a custody evaluation.
I would say, and Brian, maybe you can tell me more about this, but I say, typically, it does happen. There’s a component of that. And if the custody evaluator doesn’t do it, then a psychologist would, typically. What’s also unique to custody evaluations are home visits. So, you’ll have someone come into each home and observe the parent and the child or children, and I think that’s really important to have an observation period of time.
Typically, I also have people bring a child or children to my office, depending on the circumstances. Each family is unique, so these are not cookie-cutter evaluations, but you really have to consider the structure of the family and what’s possible. Typically, a report should explain all of this, what’s happening? What the limitations might be? Based on all the data collected, these are the conclusions, and recommendations.
Brian Walters: Yeah, that makes sense.
And another question is, how do we figure out which child custody evaluator we’re going to use? And it’s interesting, I work in big cities, Dallas, Houston, Austin, San Antonio, usually, and there are surprisingly small numbers of folks that we have to choose from. I think there’s a couple of reasons for that. I’ve found that most people, mental health providers included, don’t like to be in court and don’t like to be cross-examined and attacked, and all that other stuff. This is what’s going to happen to a child custody evaluator in a case if someone, maybe both, are not going to sum all the conclusions.
And then, of course there are some pretty high requirements. To answer that question, I found that, most of the time, the courts and the attorneys usually know who those folks are. You will usually be able to agree on, “Hey, let’s use this person. They have done good jobs for me in the past, or they’re fair, they’re open.” The judges have a list of folks as well, although they’re often the same list.
So, that’s usually not that difficult of a thing to do, and I know that clients want to know, “Well, will this one help me or that one help me and be more favorable to me?” I think, generally, that’s not the way the courts or attorneys think about it. We’re trying to find somebody who’s going to do a good thorough job.
Dr. Daphny Ainslie: I really would agree with that, because a custody evaluator is ordered by the court, so the client of the custody evaluator is the court. There are two sides in the case, however. So, typically, it might feel to some that there is a tendency to really support one side or the other, to the degree that we can stay away from that. I think that’s best because we really do want conclusions and recommendations that are really in the best interest of the child or children and of the family, overall. It’s not atypical for there to be some recommendations that may be inconsistent with the way someone in the family system thinks about him or herself or their family system.
Brian Walters: I agree. So, there’s a lot of things that a child custody evaluation can evaluate, and ultimately make recommendations about it. Just to be clear for everybody, it’s a recommendation. It’s ultimately the judge or the jury who makes a decision if the parents can’t decide on what they’re going to do. So, if child custody evaluators who evaluates it and recommends dad have custody, the judge might disagree and go the other way. Just to be clear about that. It doesn’t have the force of law, although I think they are very important to a judge. And the judges pay very close attention to them, and very frequently follow or very closely follow what’s recommended.
I’ve found that these cases kind of fall into two categories. One is, just a custody case where you’ve got two parents who probably have pretty good claims to be the primary custodial parent. Maybe they’re both very active parents, they both are good functioning people without problems, it’s a close call, and court wants somebody to make a recommendation which way to lean. The second category I found is kind of typically. It is where there’s a problem with one of the parents, or maybe both, but usually one parent. And we’re dealing with what kind of controls, restrictions, parameters are we going to put on their contact with the children to protect the children from either an addiction issue or a mental health problem. I mean, there’s always gradation. Sometimes both are at issue. Has that been your finding or your experience? That those are the two main categories, or do you find there’s others as well?
Dr. Daphny Ainslie:I think I would agree with you. I think that’s a good summary of the two main categories. As you and I both know all families are different. I see new families all the time with things that I never would’ve imagined before. But I think, typically, these are situations, just as you described. I would agree with that.
Brian Walters:Yeah, and I mean, for better or worse, our system in Texas requires if you go to trial, it basically requires the court to pick a primary parent. That word is never actually in a court order, but that’s essentially what it is. And then from there everything kind of flows off it. The non-primary parent gets typically a standard possession order and typically must pay child support on a very, very firm clear calculation, et cetera.
Everything kind of tips off that primary custodial choice. I’m not sure that’ll be the law 10 years from now, but that’s what it is now. And so, that’s why that first category is important. who is going to be primary? Because so many other things flow from that.
And then of course the second one is if we have a problem how are we going to address it? Let’s say you’ve got an alcohol problem with one of the parents. Well, the evaluation typically, might include an evaluation of that problem. How severe is it? How long has it been going on? How far along are they in the process of controlling it? What is the likelihood of falling back into using? If they did fall back into using, how severe of a problem would that be? That’s typically what I’ve found.
Lastly, let’s talk a little bit about a parent who’s going to go through an evaluation. What are they going to experience and what they should do? I’ll talk about it first as an attorney representing folks and then you can kind of talk about it from your perspective. I think first they should talk to their lawyer carefully and openly, and lawyers should be honest with them like, “Hey, you’ve got an issue here. You have a history.” For example, “You’ve got a history of drinking excessively. So, that’s going to come up and it’s not going to help you to deny it ever happened or say you don’t have a problem or blame it on something else. Just be open and honest and talk about it.” Then I need to talk to them about the process.
Also, I think you’re exactly right, this process can take a long time. It can be very expensive, and they need to be prepared for that. They’re not going to just walk in, meet with you for 10 minutes, and convince you they’re totally great and should be able to do whatever they want to. It doesn’t work like that. I think they need to be self-aware and patient. That’s typically the advice that I would give them.
What helps you to get through the process with them effectively? I think you’ve touched on it a bit, but when folks are most helpful to you to be able to do your job effectively, what are some characteristics of those type of people?
Dr. Daphny Ainslie: That’s a great question. If I may, I like to just take one step back and say, at the outset is having a good order that really says, “Dr. Forensic evaluator, custody evaluator, we really want you to answer these questions to the degree that you can.” I won’t pretend that anybody may have all the answers, however we’ll try to get really close to answering those things.
So, we continue on the example of excessive alcohol use. A question about alcohol use should probably be in that order if you want that evaluator to look at that. I find having the questions listed within the body of the order is important. That also tells your client, “This evaluator will be looking at these questions, so be prepared to speak to them.” I like to tell any party who walks through my door, “Ask questions as you have them, I will do my best to answer them to the degree that I can during this process. If not, you have hired an attorney, please lean on him or her to answer questions that you have along this process, because we want you to be informed.”
That’s partly my role as well, to secure that informed consent. People who walk into my office that I do these for are ordered to participate. So, if they choose not to then that’s a legal issue for them. Not for me because anybody who comes in, I’ve got a form that says that these are the expectations. We want you to show up and I need you to respond to me.
This is not an easy process. You’re going to be under, we might call it the microscope, for a period of time. Do your best to be honest. And that may be challenging, but typically, psychological assessments will be able to inform us if there’s dishonesty that may arise. Also, we’re going to be looking at these elements of your life and I think it’s important just to be honest and open and cooperative with the process.
Typically, people who are participating in this may be in therapy. I think that’s a decision that individual has to make because it can be helpful while in this process. So that is something to think about for your clients.
Other things that I might tell people is try to come at this with the understanding that I really believe that most of us who work in this area are all doing our best to get to recommendations. It’s difficult and it’s very important, and I think judges are doing their best to make recommendations and orders that are in the best interest of the children.
Brian Walters:Yeah, I agree. That’s difficult and folks are in an unpleasant divorce. Whatever the complaint is, again we’ll use the alcohol example if that’s probably been a thorn in their relationship and marriage for years. The last thing they want to do is here more about it and last thing they want to do is acknowledge that maybe their spouse had a point, or maybe it’s not black and white. But I don’t think that helps anybody because we’re dealing with kids and so we’re trying to put aside our needs and wants as adults and focus on the kids, but it often isn’t that easy.
Lastly, we talked a lot about going in front of a judge and the judge is ultimately going to decide things. I don’t know what the percentages are, but my experience has been it’s a pretty high percentage that the child custody evaluation often helps us to settle a case that would otherwise be impossible to settle. The classic one is the custody case. It’s a close custody case and if we just went to mediation before trial both sides would be able to say, “Look, I think I have a 50/50 chance at it. It’s worth it for me to try it. I don’t want to waste money, but my kids are more important than money.”
Then they go try the case where if we have a child custody evaluation that’s come down and clearly, it’s well done. It’s clearly on Mom’s side, it’s going to be really hard for Dad to be in the mediation room and kind of pound the table and insist on a trial because that’s going to tip it from being a 50/50 case to a case that favors mom. And so, a lot of times, that’ll bring a settlement to the case, which I think is almost always the best choice for parents who are in a conflict with each other. Not always, but most of the time.
Likewise, if there’s a significant behavioral issue. Let’s use the alcohol example again and the child custody evaluation concludes. “Yeah, dad’s got a problem with it and he’s addressing it but he’s in the early stages of addressing it. It’s not going to be fair to these kids to just completely ignore it. We need some controls and some monitoring in place for a certain period of time. Then hopefully there’s no problems after that.” That will often get the case settled because Dad’s going to have to deal with that. He knows that if he goes into court the judge is probably going to see it the same way and is probably going to impose those restrictions on him.
I think it’s generally been helpful. Is that your observation? Although, there’s not a hundred percent success rate, obviously. Probably wouldn’t go to court.
Dr. Daphny Ainslie:That’s right. I would agree with you. Again, I don’t have a percentage either, but it would be interesting to get that number. However, most of the time I send these to the attorneys and there’s a mediation that happens and parents can figure it out. It could be like, “We’ve decided on this schedule for our kids and our family, and this is the way it will be.” Or just like you said, we’re going to step this up over time and everybody’s going to have a chance to do better. In your example, if dad’s the one with an alcohol problem, mom’s going to have to just let him go through this process of recovery or whatever that might look like for this family and be supportive of the process.
I think it gives everybody some time to adjust. Also, what I found is typically after these situations take place, a custody evaluation is done, and people can exhale and kind of lean into what is going to be their new normal for their family. I think when parents can do that kids ultimately benefit from it.
Brian Walters: That’s a good way to end the podcast. That’s the whole purpose of this, to protect the children and put them in the best possible place. Basically, to make as good of a situation as we can out of a bad one. Which is, these two parents are divorcing or having a custody battle.
Well, that’s all we have for today. If you like what you’ve heard today, do us a favor and leave a review. We appreciate all your feedback, especially when it helps better the podcast. If you’re interested in reaching out to Daphny directly, we’ll have her contact info in the episode notes.
I can’t thank you enough, Daphny, for joining us today. As always, if you have any follow-up questions on this episode or would like to talk to one of us directly about your family law situation, reach out to us at podcast@waltersgilbreath.com, or just contact us through our website, waltersgilbreath.com. I’m Brian Walters and thank you for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we host new episodes every first and third Wednesday.
Do you have a topic you want to discuss or question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
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