§22.07 Physical and Mental Examination of Spouse, Child, or Legal Guardian

• Jurisdiction: Washington

§ 22.07 PHYSICAL AND MENTAL EXAMINATION OF SPOUSE, CHILD, OR LEGAL GUARDIAN

[1] Use and Scope

Physical and/or mental examinations under CR 35 are useful in family law cases. Three common situations in which they are employed follow.

[a] Maintenance/Support Issues

In the event that the opposing spouse seeks permanent or long-term maintenance and alleges physical impairments or a mental health problem, a medical examination of the spouse by an independent physician or psychologist is appropriate. This is especially true in cases in which the spouse is asserting arthritic conditions, back problems, alcoholic or drug conditions, heart problems, or mental health problems. Note that CR 35 may not be available to require a spouse to submit to an examination by a career counselor because the rule is limited to "physician or psychologist." However, see Massey v. Manitowoc Co., 101 F.R.D. 304 (E.D. Pa. 1983), in which the court held that the plaintiff injured in a products liability case was subject to an examination by a rehabilitation expert for the purpose of determining the plaintiff's capabilities. See also § 20.5[2] in Chapter 20 (Use of Professionals in Family Law Litigation) of this deskbook.

[b] Mental or Physical Examination of Child in Parenting Cases

In the event of a refusal by the custodian of a child to produce the child for a mental or physical examination, CR 35 can be used. In McDaniel v. McDaniel, 14 Wn. App. 194, 539 P.2d 699 (1975), the father, the noncustodial parent, petitioned to modify the parenting plan. While the children were in his care, the father obtained psychological evaluation of the children. The trial court awarded custody of the children to the father. On appeal, the mother, citing CR 35 and former RCW 26.09.250 (since repealed), argued that the trial court erred by admitting into evidence the psychological examination of the children. The court held that neither CR 35, which permits appropriate examination of a party, nor RCW 26.09.250, which permitted the custodial parent to determine the upbringing of the child, prohibited the noncustodial parent from consenting to or obtaining a psychological examination of the child.

Practice Tip: Even though McDaniel is the law, many court commissioners and judges do not follow it.
Practice Tip: If there is joint decision making, some judges and court commissioners may object to one parent's arranging a psychological examination of a child without the consent of the other parent; or if one

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