A failed challenge to an expert Child custody and parenting time evaluation

On February 12, 2019, the Michigan Court of Appeals decided the custody and parenting time case of Amy Oglive v. Eric Oglive.  In this case, the trial court ordered the parties to participate in a psychological evaluation to address concerns of custody and parenting time.

Eric was incarcerated when the parties divorced in 2012 and Amy was awarded sole physical and sole legal custody of the parties two children. When Eric was released from jail in 2015, the parties were unable to establish a parenting time schedule.

When Eric filed a motion for custody and parenting time, the trial court ordered supervised parenting time for Eric on an interim basis. Thereafter, the trial court required both parties to undergo a psychological evaluation.

The psychological evaluation recommended Eric undergo mental health treatment before exercising parenting time. When Eric refused to comply with the recommendations of the psychologist, the court suspended his parenting time and Eric appealed.

Eric vigorously represented himself on appeal and argued that:

“. . .the trial court’s order requiring him to comply with the recommendations from the psychological evaluation constituted “involuntary mental health treatment under the Mental Health Code, MCL 330.1403, and violates his liberty interests and privacy rights. . .”

Why the child custody and parenting time evaluation challenge failed?

The Michigan Court of Appeals disagreed, noted that:

“ . . . the trial court’s order is not the equivalent of an order compelling involuntary mental-health treatment. It merely set forth conditions to be satisfied to allow defendant to pursue parenting time. . .”

The Michigan Court of Appeal upheld the trial court’s suspension of Eric’s parenting time until he complied with the custody and parenting time evaluation by the court ordered psychologist.

Court can appoint an expert to prepare a child custody and parenting time evaluation.

The trial court has the authority to utilize the Friend of the Court or appoint its own expert in making a custody or parenting time determination.  The authority is found in the Michigan Rules of Evidence Rule 706. Typically when a court ordered child custody and parenting time expert prepares his evaluation, the parties waived their respective doctor-patient and psychotherapist-patient privilege thus permitting the expert to testify in the court. 

The child custody and parenting time expert issues a report of the established custodial environment (MCL 722.27(a) (c)) and each of the best interest factors contained in MCL 722.23 in making recommendations of legal and physical custody in addition to parenting time.

For more information on how a child custody or parenting time evaluation works (e.g. the interviews and objective testing such as the MMPI-2, Rorschach and MCMI-III tests and watch are webinar on the topic below:

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I have been exclusively practicing divorce and family law in Michigan for over two decades.  The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling

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