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Custody Evaluations and the Illusion of Helpfulness

By Timothy M. Tippins

The opinions of forensic evaluators in child custody cases carry the potential power to change lives by force of law. Too often those opinions are received in evidence without serious examination of whether they are based upon demonstrable knowledge as opposed to subjective beliefs and idiosyncratic value judgments. Intellectually empty proclamations, such as 'the opinion is helpful' or 'I'll take it for what it's worth' usher these potent utterance into evidence in all too many courtrooms. The notion that an opinion that is not demonstrably valid can be helpful and ought to be admitted 'for what it is worth' is as illusory as it is foreign to evidence doctrine.

Learned Hand once declared that the use of the term res gestae was an open admission of a refusal or an inability to think. Younger, I. Hearsay: A Practical Guide Through the Thicket. Prentice-Hall (1988); United States v. Matot, 146 F.2d 197 (Second Cir. 1944). The same can be said of the 'take it for what it's worth' idiom and the illusion of 'helpfulness.' Both expressions are meaningless because they ignore the evidentiary requisite of demonstrable validity.

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