CAN YOU BE SUED FOR BEING A 604(b) EVALUATOR?

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In recent years, the number of 604(b) evaluators has declined dramatically while the number of 604(b) based lawsuits has increased.  Maybe it is coincidental, but it is no coincidence that the exposure to liability for a 604(b) evaluator has increased exponentially.

 

Generally, a 604(b) evaluator is a psychologist or psychiatrist appointed by the court to mediate custody or visitation disputes during divorce proceedings.  750 ILCS 5/604(b) states:

 

“the court may seek the advice of professional personnel, whether or not employed by the court on a regular basis.  The advice given shall be in writing and made available by the court to counsel.  Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness.” 

 

The court appointment fundamentally effectuates the status of officer of the court on the 604(b) evaluator.  Additionally, the court appointment authorizes the 604(b) evaluator to meet with all persons involved in the divorce proceeding, including children, and any persons who have direct involvement with the family. The appointment requires the 604(b) evaluator to act as “judge” when making a recommendation to the court.

 

The 604(b) evaluator provides the court with written advice regarding custody or visitation disputes.  The court has discretion whether to use the written advice and, if used, how much weight the advice is given.  The advice is made available to counsel during the proceedings and counsel is entitled to examine the evaluator as a court witness.  The evaluators’ advice often causes one of the parties to become chagrined when they view outcome of the divorce proceeding to be unfavorable to their interests.

As a result of a parent’s disappointment with the courts determination, the 604(b) evaluators are now being sued in civil courts for monetary damages.  Some of the aggrieved parties are filing lawsuits for, among other reasons, alleged bias and not conducting enough interviews.  The allegations do not suggest that the evaluators acted outside the scope of their responsibilities as officers of the court.  When a 604(b) evaluator is appointed by the court and acts within the scope of their responsibilities, the court should bestow absolute immunity from liability on the evaluator.  The immunity is necessary to allow  the evaluator to properly perform their court-appointed functions.  A number of courts have granted this immunity to court appointed officers because they function in a judicial capacity.   

The 9^th Circuit Court of Appeals granted absolute immunity to family conciliation counselors who were appointed by the court.  The 6^th Circuit bestowed absolute immunity on private psychiatrists and psychologists involved in state proceedings who were deemed officers of the court acting within the scope of their responsibilities. The 8^th Circuit held court-appointed therapists in child sex abuse cases have absolute immunity from damage claims.  The 7^th Circuit granted absolute immunity to a psychologist who was a court-appointed conciliator functioning to mediate custody and visitation disputes.   

An essential and seemingly inherent element of a court-appointed 604(b) evaluator is absolute immunity from damage claims.  The court-appointed evaluators perform a critical court function as 604(b) evaluators.  Without such immunity the 604(b) evaluator will be distracted by the possibility of future lawsuits and more importantly, will no longer participate in the 604(b) process if they continue to be subject to civil lawsuits.  

Some other aggrieved parties have taken to filing complaints against the 604(b) evaluators with the Illinois Department of Financial and Professional Regulations (IDFPR).  These complaints have been filed pursuant to the Medical Studies Act.  Our firm has represented many 604(b) evaluators before the IDFPR.  It is our position that 604(b) evaluators are not within the purview of the IDFPR, pursuant to the Medical Studies Act, because the 604(b) evaluators are not treating any persons.  Notwithstanding our position, the IDFPR continues to prosecute complaints against 604(b) evaluators.  

The IDFPR functions to serve, safeguard, and promote the public welfare by ensuring that licensure qualifications and standards for professional practice are properly evaluated, accurately applied and vigorously enforced.  The IDFPR is the governing body for disciplinary actions.  However, the 604(b) evaluator, when appointed by the court, steps out of their role as a clinician and becomes an officer of the court.  As an officer of the court, unless the evaluator acts outside their scope of responsibility, the IDFPR should not have jurisdiction to discipline the evaluator because they have not provided any treatment or medical care.