Rule 5.Physical and Mental Examination of Persons Before the Family Court
Not amended since adoption on record · Last verified September 12, 2026
Full Text of Rule 5
Notes
REPORTER'S NOTES: This rule is adopted to provide procedure in addition to that found in Family Court Rules 1, 2 and 3, Family Court Rule 4(g) and Vermont Rule of Civil Procedure 35 for mental and physical evaluations of persons. This rule authorizes greater supervision over the selection and payment of experts than would otherwise occur under those rules. The court selects the expert under this rule, and the court determines who pays for the expert. See the Reporter's Notes to Rule 2 for discussion of the case law being modified by this rule. Subdivision (a) differs in one significant respect from Civil Rule 35 in its description of what the court can order. In addition to a mental or physical evaluation, the court can order a home study. Often a home study provides more useful information, in a family proceeding, than would a mental evaluation. Home studies may include investigation of the surroundings of the children, their age, educational needs, health, habits and history, and the character, parenting skills and parental experience of the adults involved in a family court proceeding, as well as any other matter which the court deems relevant to its determinations. Similar investigations were performed by state social workers under former 15 V.S.A. § 557(b), adopted by Act No. 264 of the Laws of 1969 (Adj.Sess.), § 3 and repealed by Act No. 247 of the Laws of 1981 (Adj.Sess.), § 18. The qualifications of the person selected to perform the home study need not include formal education in family matters, nor certification as a mental health professional or physician. Practical experience or nonacademic training may suffice. See Reporter's Notes, V.R.E. 702. The person who performs the home study will be subject to discovery procedures and must be available for cross-examination. See V.R.E. 706 (and in cases under Family Court Rule 4, see 15 V.S.A. § 667(b)). This differs from the role of the guardian ad litem, who generally serves as an advisor or advocate but not as a witness. See Family Court Rules 6 and 7. Subdivisions (b), (c) and (d) of the rule add procedural protections. First, in order to avoid breaches of confidentiality, the rule forbids appointment of experts who are or who have been treating the person who is the subject of the evaluation. Second, the rule excludes Civil Rule 35(b)(2). This supersedes Family Court Rule 4(a), which makes the civil rules generally applicable to divorce proceedings. See Reporter's Notes to Family Court Rule 2(f) for discussion of why Civil Rule 35(b)(2) is inappropriate in family matters. Finally, the rule recognizes the statutory procedures found in Chapters 179 and 181 (Mental Health), 204 (Involuntary Sterilization), 206 (Mental Retardation) and 215 (Protective Services) of Title 18. These have been carefully structured by the Legislature to balance the needs of the state against the rights of individuals. The rule does not supersede these. In areas not addressed by statute, however, the procedure shall conform to this rule.
Plain-English Summary
Subdivision (a) gives the family court a way to get an outside look at a disputed situation. In any family court proceeding, except where Rules 1, 2 and 3 provide otherwise, the court may order a physical or mental evaluation of a party, or of a person who is in the custody or legal control of a party. The court may also order a home study.
The court picks the expert, not the parties. The rule does tell the court to consider names the parties submit, so a suggestion is worth making, but the choice belongs to the judge. The court also decides who pays the cost of an evaluation. It may put that cost on one party, on both parties, on the court, or on some combination of them, and the rule sets no formula for the split.
Subdivision (b) keeps treatment apart from evaluation. Someone who is treating the person being evaluated, or who treated that person in the past, cannot be appointed as the expert unless that person consents. Subdivision (c) switches off one piece of the civil discovery machinery. It is one line long: V.R.C.P. 35(b)(2) does not apply in family court. Rule 5 sets out no waiver of its own, so nothing in this rule turns a request for the report into one.
Subdivision (d) covers the specialized proceedings the rule lists under Title 18. Statutes control those cases. Where a statute is silent, practice conforms to this rule.
Frequently Asked Questions
Who chooses the evaluator in a Vermont family case?
The court does. Rule 5 puts the selection of the physician or other expert in the court's hands for both evaluations and home studies. The parties can submit names, and the rule requires the court to consider them, but the appointment is the court's decision.
Who pays for a court-ordered evaluation?
Whoever the court says. The rule makes the court determine who pays, and it can order one party, both parties, the court, or some combination of them to cover the cost. No formula appears in the rule, so the order in your case controls.
Can my own therapist be appointed to evaluate me?
Not without your consent. The rule bars the appointment of an expert who now provides treatment to the person being evaluated, or who provided treatment in the past, unless the person being evaluated agrees. Consent is what makes such an appointment possible.
What is a home study, and when can the court order one?
The rule does not define a home study. It lets the family court order one in any family court proceeding, except as Rules 1, 2 and 3 provide otherwise, and it treats the study as an alternative to a physical or mental evaluation rather than as a defined report. What a study covers is left to the court's order in the case.
If I ask for a copy of the report, do I waive my privilege?
Not under Rule 5. Subdivision (c) states that V.R.C.P. 35(b)(2) does not apply in family court, and Rule 5 contains no waiver provision of its own. Whether any other source of law affects privilege in your case is a separate question this rule does not answer.