Suppose two people have the same drinking habits. Both drink socially, occasionally overdo it, hold steady jobs, and have no pattern of alcohol-related impairment. One consults a professional on his own. The other is sent by a court after his spouse alleges an alcohol problem. If the clinical facts are identical, the evaluations should reach the same result. Whether they do is an open question.
In child custody disputes and criminal cases, the accusation can start to function as evidence of the condition the evaluator is supposed to be testing. The referral implies there must be something wrong, or the court wouldn’t have ordered the evaluation. An evaluation meant to answer whether a problem exists can instead be treated as a fait accompli, drifting into measuring not whether there is a problem at all, but “how much of one there is.”
Three questions that get merged
Any honest inquiry into someone’s drinking involves three separate questions:
1. Does this person sometimes drink too much?
2. Does this person meet the clinical criteria for an alcohol use disorder?
3. Does this person’s drinking impair functioning or parenting, or put anyone at risk?
The answers are not interchangeable. Plenty of adults overdrink occasionally without a disorder. A person can meet the criteria for a mild disorder and still parent safely. And someone with no disorder can have one dangerous night. The legal system often treats a “yes” to the first question as a “yes” to the second, and a “yes” to the second as a “yes” to the third. A diagnosis cannot carry that weight.
What “mild” means
DSM-5 replaced “abuse” and “dependence” with a single diagnosis, alcohol use disorder, in 2013. It requires a problematic pattern of use causing clinically significant impairment or distress, shown by at least two of eleven criteria within twelve months. Two to three criteria is “mild.” Some criteria, considered in isolation, describe experiences that are not necessarily evidence of clinically significant impairment. Drinking more than intended, for example, has to be assessed in context. Recurrent use in physically hazardous situations is another criterion, but a DUI arrest does not by itself establish a recurring pattern. The evaluator has to examine the underlying conduct rather than treat the arrest as a substitute for clinical findings. Mild alcohol use disorder is not rare, and the label alone says little about whether this parent is a risk to this child.
The impairment requirement is where the scrutiny belongs. An evaluator who treats the arrest as proof of both the criterion and the impairment has reasoned in a circle.
The American Psychiatric Association’s own forensic caution points the same way. DSM-5-TR explains that its diagnostic categories were developed for clinical and research purposes, not to answer the technical questions courts must decide. A correct diagnosis can leave the legal question unanswered, and in custody litigation it can become a shortcut to conclusions about safety and parenting fitness that the evidence hasn’t established.
Screening is not diagnosis
Utah’s DUI sentencing statute, Utah Code § 41-6a-505, treats screening, assessment, education, and treatment as separate steps, and what applies depends on the conviction category. A person can be required to complete education without anyone finding a disorder. Mandatory screening is not a mandatory diagnosis, and an alcohol-related legal consequence is not a clinical condition.
Unequal costs of error
Consider the evaluator’s position. If he clears someone who later harms a child, he is criticized, and one seen as lenient on alcohol may lose standing with the courts that appoint him. If he diagnoses a disorder that wasn’t there, the cost lands on the person evaluated: treatment expense, monitoring, restricted parent-time, and a label that follows him through the case. Almost no one tracks that error. Evaluators also don’t generally learn that someone they diagnosed never had a disorder.
Treatment providers, monitoring vendors, and educational programs are paid downstream of these findings, so any financial tie between an evaluator and the services he recommends deserves scrutiny. That does not establish that anyone is dishonest, and the argument doesn’t depend on it. Professional caution and reputation can bend judgment without any money involved.
None of this requires bad faith. Each participant can sincerely believe that an extra precaution is prudent and that treatment can’t hurt. Individually defensible instincts can still add up to a process that errs in one direction.
I can’t tell you how often court-referred evaluations come back with no diagnosis. That is the number that matters, and the courts and evaluators involved should be able to say what it is. If an evaluator can explain his safeguards against missing a disorder but has none against inventing one, that asymmetry tells you something.
Courts have their own reasons to favor this process
Ordering an evaluation is easy to defend and rarely reversed. It lets a judge avoid deciding a contested fact, such as whether and how much a parent drinks, by routing it to an expert whose conclusion can then be cited in the findings.
There is also the appearance. A court that orders the evaluation, the classes, and the testing looks tough on alcohol abuse, and overreaching costs the court nothing. The parent pays for the evaluation, the program, and the monitoring. Nobody asks the court to justify a restriction the evidence didn’t require, because nobody tracks the cases where the evidence didn’t require it.
Call it what it is: CYA. It doesn’t necessarily require bad faith, but it isn’t the product of the utmost good faith either. A judge can sincerely want to protect children and still reach for the step that is easiest to defend. Because the two motives point the same way, no one has to ask which one is doing the work.
If a child is later hurt, the file shows the court followed professional advice. If the evaluation was wrong, the cost lands on the parent: the fee, the treatment, the monitoring, the lost parent-time. The risk is complacency. Once the report is in the file, the court’s own inquiry can stop. The label becomes the fact, and the conditions that follow from it become routine.
A label that can’t be disproved
Once the label attaches, it is hard to dislodge. Completing treatment suggests the diagnosis was needed. Contesting it looks like denial. When no result counts against the finding, the finding isn’t testing anything.
What a valid evaluation requires
Concerns about alcohol are often serious, and courts have to be able to act on them. But protecting children and avoiding false labels both depend on accurate fact-finding. A sound process looks like this:
• The order says what the court needs to know and doesn’t simply direct an “alcohol abuse evaluation.”
• The evaluator identifies each criterion found, the evidence for it, and the evidence against it.
• The report separates consumption, diagnosis, and demonstrated risk, and doesn’t treat the diagnosis as proof of danger.
• The evaluator can say “the evidence doesn’t support a diagnosis” or “the evidence is insufficient,” and can explain the evidentiary basis for either conclusion.
• Recommendations rest on identified clinical needs or established risks, not on the fact that an evaluation was ordered.
What courts can do so the report doesn’t become the decision
An evaluation is evidence. It isn’t a finding of the court, and the court still has to make its own. Several steps keep the report where it belongs:
• Hold an evidentiary hearing before imposing restrictions that rest on the report, with cross-examination of the evaluator and room for rebuttal evidence.
• Make findings of the court’s own. For each condition, identify the evidence behind it, the risk it addresses, and why a lesser measure won’t do.
• Tie every condition to an identified risk, not to the diagnostic label, and say what the condition is meant to accomplish.
• Build in an exit. Say what results end a condition, such as a period of clean testing, and set a review date. A condition with no way out measures compliance, not risk.
• Track outcomes. Courts and evaluators should know how often evaluations end with no diagnosis and how often conditions are later lifted. Without that record, nobody can tell whether the process discriminates.
An evaluation that cannot return a negative result isn’t informing the court. The test of a sound one is that it could have cleared the person in front of it.
Utah Family Law, LC | divorceutah.com | 801-466-9277