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The Matrimonial StrategistLJN NewslettersNewsSections

Discovering the Illegible

By David A. Martindale

At one time or another, most attorneys handling litigated custody disputes have obtained evaluators' notes, only to find them to be undecipherable. It is my position that when this occurs, evaluators bear the responsibility for having their notes transcribed at their own expense.

Model Standard 3.2(a) of the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation states, in pertinent part, that “evaluators shall presume that their records are created, maintained, and preserved in anticipation of their review by others who are legally entitled to possess them and/or to review them.” A similar admonition appears in the American Psychological Association's custody guidelines. Guideline 16 reads: “All raw data and interview information are recorded with an eye towards their possible review by other psychologists or the court.” Simple logic suggests that if one is creating records “in anticipation of their review by others,” those who might wish to review the records need to be able to read them. Nevertheless, the AFCC elected to specify, in Model Standard 3.2(b), that records “shall be created in reasonable detail, shall be legible, shall be stored in a manner that makes expeditious production possible, and shall be made available in a timely manner to those with the legal authority to inspect them or possess copies of them.”

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