In this last of a series of articles, we explore the legal authority for and scope of “mental examinations” sometimes utilized by Georgia judges to aid their determinations in child custody proceedings. Prior articles in this series discussed the “psychological custody evaluations” and “parental fitness evaluations” which trial courts also employ in child custody cases.

Unlike psychological custody evaluations and parental fitness evaluations, “mental examinations” may occur in contexts other than child custody, and usually do so. The statute authorizing such examinations broadly provides that “[w]hen the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician or to submit to a mental examination by a physician or a licensed psychologist or to produce for examination the person in his custody or legal control.”(1) As the statute further states, “[t]he order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”(2)

The governing statute merely requires a showing that a party’s physical or mental condition be “in controversy.” The term “in controversy” does not require the party’s condition to constitute a main issue in a case(3)

Although not explicitly stated in the governing statute, it appears that a trial court can deny a request for physical or mental examination of a party if the information sought under the motion for examination could be obtained from other available sources.(4)

To place a party’s mental condition in controversy, an allegation of continuing mental injury will suffice.(5) Testimony of a treating physician or mental health professional that a party suffers from a mental disorder which impacts a matter at issue in the case also should suffice.(6) Likewise, a party’s admission of his or her own mental disorder also can support an order for mental examination.(7)

Regarding the manner, conditions, and scope of the examination, a trial court at minimum should confine the examination to the mental health problems in controversy.(8) The length of the examination should not be unduly oppressive either.(9)

Neutrality and independence are not required of an examining psychologist/psychiatrist. Rather, the examiner may be retained by the party seeking the examination and be potentially biased toward that party. The trier of fact will consider the question of bias when evaluating the expert’s testimony.(10)

At the conclusion of a mental examination, the performing psychologist/psychiatrist normally will issue a detailed written report setting out the expert’s findings, including results of all tests made, diagnoses, and conclusions.(11) While the governing statute does not so specify, the mental examiner’s conclusions presumably should discuss how the report’s findings relate to the matters in controversy. For example, in a case involving an analogous “mental evaluation” authorized under Georgia’s Juvenile Code, a psychologist evaluating a parent in a termination of parental rights proceeding reported that the parent was functioning at the age of six years, five months, and then concluded that the parent’s level of mental impairment precluded her from successfully raising a child.(12)

(1) O.C.G.A. § 9-11-35(a). (2) Id. (3) Sneider v. Crider, 148 Ga.App. 385, 386(2), 251 S.E.2d 315 (1978). (4) Prevost v. Taylor, 196 Ga.App. 368(1), 396 S.E.2d 17 (1990). (5) Roberts v. Forte Hotels, Inc., 227 Ga.App. 471, 475(3), 489 S.E.2d 540 (1997). (6) See Rose v. Figgie Intern., Inc., 229 Ga.App. 848, 495 S.E.2d 77 (1997). (7) Id. (8) Roberts, supra, 227 Ga.App. at 475(5). (9) Id. (10) Morris v. Turnkey Med. Eng'g, Inc., 729 S.E.2d 665, 671 (Ga. Ct. App., 2012) (11) O.C.G.A. § 9-11-35(b)(1). (12) In re LH, 236 Ga. App. 132, 135, 511 S.E.2d 253 (1999), disapproved on other grounds, State v. Herendeen, 279 Ga. 323, 326, 613 S.E.2d 647 (2005).

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