Ciyou & Dixon, P.C. child custody advocates frequently discuss custody evaluations with their clients. They are one of the many tools in a domestic attorney’s tool box that may help a client to reach his or her custody objectives. To make the most of any case, however, they should be considered, not just used as a standard course.
The place we begin at Ciyou & Dixon, P.C. is to explain to our clients the custody evaluation process. There are a number of concepts that you must understand to help us determine if this is, in fact, the right legal tool for your case, particularly given the expense.
And sometimes this task is made more difficult because we (all lawyers in fact) use legalese and forget how the stress of a divorce may impair the best of clients from grasping the concepts. As a client, you should always ask questions about anything that you do not understand.
We believe that a general understanding of what a custody evaluation is comes from viewing a case, your case, from the judge’s perspective. He or she must make hard decisions. For this reason, trial court judges like to have professionals, who understand child development and the specific psycho-social dimensions of a given family, provide them with insights on what makes sense for a custody determination in a given circumstance.
Judges are thus receptive to ordering a custody evaluation if it is requested by a party. Typically, custody evaluations are performed by a licensed clinical social worker or child psychologist. When appointed, this professional then interviews and observes the parties and the children.
In addition, the evaluator usually interviews any significant others or in-house care-givers, and they are encouraged to participate in the process. Most of the time, the evaluator will conduct psychological testing. The most typical test administered is the Minnesota Multiphasic Personality Inventory (MMPI), which helps to determine personality states and traits.
Personality states are the emotional status of the person at that particular moment, such as crying or euphoria. The traits are the features of a person’s character, such as being rigid or compulsive.
The child custody evaluation is not constrained or limited to this test. There are several tests that may be used, particularly if there is some specific allegation, such as anger or sexual deviancy. Nevertheless, this still does not allow evaluators to fully sort through the he-said, she-said to report to the court in a meaningful way what is in the children’s best interests. This is accomplished by collateral material.
This collateral information can be anything that tends to validate or invalidate a parent’s concern or allegation as the child’s best interests are concerned. Common types of collateral data include phone interviews with family, friends and teachers, as well as written materials, such as police reports and school records.
After the custody evaluator conducts the interviews, scores the psychological testing and gathers collateral materials, he or she prepares a written report and submits it to the court. This report may make recommendations on physical and legal custody and parenting time. All are directed to be in the children’s best interests.
At Ciyou & Dixon, P.C. we take great care to make sure our clients understand the importance of the ultimate report. In short, a trial court judge may place a great deal of weight on the child custody evaluation and its recommendations. However, since the trial court judge is ultimately the fact-finder, he or she is not bound to follow the custody evaluator’s report if it does not appear to be in the child’s best interests.
Assuming the child custody evaluation makes sense to our clients in consultation with the attorney, the next consideration is to weigh it in the context of the overall budget for the case or in setting a realistic budget.
A typical custody evaluation costs in the range of $5,000-$12,000, as it takes an evaluator several hours to conduct it and then prepare a report. However, this can be an actual cost savings insofar as preparation of trial evidence is concerned.
This is a fairly advanced and complex concept. At trial, a lawyer is bound to follow specific rules to admit documentary evidence. For instance, it may take subpoenaing a police officer to the divorce trial to get his or her police report, which might be critical to the custody issue, admitted into the evidence because it contains the statements of others (hearsay).
Nevertheless, since licensed clinical social workers and child psychologists rely on and use this type of information in their professions, it comes into the trial evidence if it is set out in the custody evaluation report or the evaluator’s trial testimony. It does not matter that the police officer is not in court.
We at Ciyou & Dixon, P.C. find that in any given custody case, there may be 50 or more pieces of crucial evidence that cost a small fortune to get into admissible format to admit and make the trial last longer. However, its usage and inclusion in the custody-evaluation process and report provides an alternate means to get it into the trial evidence for the trial court judge to consider.
Child custody evaluations are thus very important tools to get evidence packaged for a contested custody trial.
The last point, and one that haunts some litigants, is the question of what happens if the report is not favorable to their position. This is a legitimate and real concern. This is not necessarily the end of the analysis. An unfavorable custody evaluation may be attacked in several ways.
First, a party may obtain a second custody evaluation or have an expert assess the shortfalls of the report that is unfavorable to his or her custody objective. Related to this, an evaluator’s underlying file, including testing, must be made available; and this may be accessed to challenge the integrity of the custody evaluation.
Second, if a critical fact or circumstance is missed, or transpired during the process but was not brought to the attention of the custody evaluation, the evaluator may be called upon to investigate this and make an addendum to the report. This may or may not change the outcome and recommendations. As a corollary, if significant time has passed, the child custody evaluation is stale, and this may be a basis from which to challenge it at trial.
The most common, and third, basis for lodging a challenge to the custody evaluation and its recommendations is by calling the expert at trial and cross-examining him or her about its actual or perceived shortfalls. Again, if significant deficits are revealed, the trial court is not bound to follow these recommendations, nor any other piece(s) of evidence.
At Ciyou & Dixon, P.C. we observe that with the high number of divorces, the trending toward joint custody, and the new relocation statute, all as triggering events under the child-custody umbrella, custody evaluations work well for these companion legal issues. In other words, legal custody, parenting time, and relocations often benefit from a professional custody evaluation.
Your advocate should discuss the indicated and useful tools available for your custody objectives with you. This is how the right synthesis is reached and the right legal tools applied to the task at hand.
If you are embroiled in or considering a custody case, you should discuss with your counsel the propriety of a custody evaluation. Ultimately, we believe that living with the process and outcome requires this information and confidence in whatever lawyer you choose.