On February 19, Associated Press reported that Hera McLeod, mother of a 15-month-old boy who drowned while in his father’s care, is suing the psychologist who suggested the visitation. The court-ordered unsupervised visitation came after Margaret Wong, a psychologist who evaluated the boy’s father, told the judge that visitation would be appropriate.
Now, the boy’s mother alleges professional negligence in a wrongful death suit against Wong. The attorney representing the boy’s mother said that Wong had a duty to prepare a report with the child’s best interests in mind, rather than merely reaching a favorable conclusion for the boy’s father, who paid for the evaluation.
The boy’s father is also under investigation for the unsolved shooting of his ex-girlfriend in 2003, as well as suspicious circumstances surrounding his mother’s purported suicide in 2008. McLeod believes that this history, in addition to other abusive episodes and “sexually aberrant behavior,” should have provided a sufficient basis for the psychologist to declare the father unfit for unsupervised visitation.
In Arizona, custody and visitation statutes are expressly directed toward serving the best interests of children. Mental examinations similar to the one that Wong performed are common components of a court’s determination of parental fitness. Courts usually permit the parties to reach an agreement regarding who should perform the evaluation and will order a neutral psychologist if they cannot settle the issue on their own.
Rule 35 of the Arizona Rules of Civil Procedure provides guidelines for physical and mental examinations, including the rights of the parties and reporting requirements for examiners. Under Rule 35(a), the examination may be audio-recorded “unless such recording may adversely affect the outcome of the examination.” Exams can also be video-recorded upon showing of good cause – in the case of the boy mentioned above, the father’s history of deceptive and manipulative behaviors and the fact that he was permitted to choose the psychologist and pay for the exam would likely constitute good cause for video recording. Rule 63 of the Arizona Rules of Family Law Procedure provides virtually identical provisions for physical, mental, and vocational evaluations of persons involved in proceedings.
A recording of the examination would be useful in the wrongful death/professional negligence context if the exam resulted in adverse consequences in the future, as it did for McLeod’s 15-month-old son. More importantly, the video may have been analyzed and provided evidence necessary to dispute the validity of the exam before unsupervised visitation was ordered, possibly to the extent of changing the judge’s holding and preventing the tragic death of a boy whose father stood to gain over $500,000 from life insurance policies he previously purchased.
There are many lessons to be learned from this case for professionals and litigants, alike. In any scenario involving the well-being of children, the best interests of those less able to protect themselves should always take precedence. Professionals may have specific obligations to their clients and extraneous personal motivations, but they are still members of the community and must consider the effects of failing to discharge their duties each time they act.
Click the following link to read the full story published by Miami Herald: http://www.miamiherald.com/2013/02/19/3242636/mother-sues-psychologist-following.html