Fundamental constitutional rights have received comprehensive ongoing recognition in the criminal law arena, but in the area of divorce law, particularly when the issue of a parent’s right to custody of his or her child is at stake, those rights are often abridged and overlooked. It is indisputable that the right to custody is a “fundamental right,” as held by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000).
Particularly vexing for litigants and lawyers alike are the restrictions placed by our courts and our judges on access to the reports of mental health professionals in child custody matters. These reports, setting forth the results of court-ordered child custody evaluations of a family in the midst of oftentimes crisis-laden marital dissolution proceedings, have been the subject of criticism on a variety of bases. For example, there have been complaints that such reports treat pro se litigants in a different, less consistent manner than parents who are represented by counsel, which would provide represented parents with an unfair advantage in such custody proceedings given the weight that may be attached by a judge to the report of a mental health professional.
