In most cases where the
parents are unable to agree on custody, the court will require a custody
evaluation performed. This may be carried out by county social
workers, a "friend of the court", psychologists or a Guardian Ad Litem.
A Guardian Ad Litem is a person that is appointed by the Court to
represent the interests of a person who is unable to do so for
themselves. In the context of a custody case, the Guardian Ad Litem acts
as a spokesperson regarding what the Guardian believes is in the child’s
The person performing
the evaluation will investigate the facts and generate a report that is
provided to the Court. The report will usually include a summary of the
investigation, an analysis of the custody factors set out in your
state's Statutes and a conclusion regarding what is in the child(ren)’s
THE USE OF CUSTODY
The Court is not
required to adopt the recommendations of a custody evaluator. However,
in most custody cases, the parties have very polar positions regarding
the facts. This often boils down to a “He Said - She Said” Situation at
trial. Where the evaluation was performed by a person appointed by the
Court, the evaluator is considered a neutral party and their
recommendation may hold considerable weight with a Judge who must weigh
conflicting testimony. To combat an unfavorable custody report, your
attorney will try to point out the deficiencies of the investigation
performed and facts that may have been overlooked by the evaluator. It
is may also be necessary to hire your own expert to conduct a separate
custody evaluation and present a different recommendation at trial.
POWERS OF THE EVALUATOR
The custody evaluator
often has broad power and may require the parties to provide releases of
information for counseling, medical or psychological records. The
evaluator may also require psychological testing, chemical dependency
evaluations or random urinalysis tests as part of the investigation
process. This is particularly true when one parent raises concerns about
the other parent’s chemical dependency or emotional stability.
Although each custody
evaluator may have a slightly different approach to performing custody
evaluations there are some things you should expect :
At the initial
interview, the evaluator will discuss at length the past history of care
with the child. The evaluator will attempt to determine who was the
primary caretaker. BE PREPARED! At the initial interview arrive
prepared with a chronology of events clearly set out.
The evaluator will make
at least one home visit to watch you interact with your child(ren). The
evaluator is watching to see:
actively play with and interact with your child;
Whether you set
appropriate boundaries for the
child and whether
the child obeys those boundaries;
Child’s reaction to the parent:
Condition of the home
The evaluator will ask
for a list of persons that you think the evaluator should contact.
Family members are usually not good contact since they may be biased in
your favor. Where possible use independent contacts such as counselors,
daycare providers, and school teachers.
Where there are
allegations of alcohol or drug abuse, the evaluator may refer you to a
counselor for a chemical dependency evaluation. It is important that you
cooperate in that process.
Where there are
allegations of emotional or anger problems, the evaluator may refer you
to a counselor or psychologist for a psychological evaluation. It is
important that you cooperate in that process. Make sure that you
communicate with the evaluator or counselor regarding any and all
appointments. Budget enough time to complete and testing that is
required. A failure to cooperate will appear in the evaluation.
INTERACTING WITH THE
How you interact with
the custody evaluator may be a critical element of your custody case.
Never assume that the
evaluator’s report will favor your position.
Custody evaluators are also people. That means they react to
personalities. You are best able to present your case to an evaluator if
you appear open and honest. Do not argue with the evaluator. Make eye contact and
listen when they speak. This establishes a connection. It may help to
nod your head as they speak even if you disagree with what they are
saying. When you disagree, tell them “I see your point, but...” or agree
first “I agree, but would you consider this to be important....”
evaluator cares about what is in the “best interests of the child(ren).” To relate your case to the evaluator, you must
speak his/her language. Your statements must relate in some way to what
is best for the child not the parent. For example, the statement, “my
husband drinks too much”, is incomplete. It does not relate how the
drinking affects the child(ren). Always relate how the conduct affects
the child(ren). A better statement would be: “My husband drinks
too much. Because of that, he is rarely home and when he is, he is:....
abusive....spends little quality time with the children....is unable to
help the kids with their homework....”
The custody evaluator does not care about good guys and bad guys.
Provide the evaluator with the documents supporting your
(It is usually better not to include relatives as
part of your contacts since they may have a bias).
Provide the evaluator with the names of collateral contacts,
people who are aware of your strong points as a parent and the other
party’s weak points.
when you go to court or visit a
custody evaluator that you may be ordered to provide a urine sample for
testing to determine if you have used drugs or alcohol.
PRESENTING YOUR CASE
TO THE EVALUATOR
Remember, there are six
magic words in custody evaluations.- “Best Interests of the Minor
Child”. Custody evaluators listen for issues that relate to that
phrase. You should relate how each of your proposals is beneficial to
your child(ren). Wherever possible use phrases that mean “best interest
of the minor child” without using those exact words. Using the exact
words sounds too legalistic and prepared. Your statements should sound
There are certain
things that evaluators look for in their custody evaluation. You should
discuss these issues with the evaluator truthfully since the evaluator
will, to a degree, assess your credibility. The issues you should be
prepared to raise are the following:
Where has the child
lived since birth? What was the extent of contact each parent had at
each phase of the child’s life? What responsibilities did each parent
The best way to support
the contention that you provided care for the minor child is through
independent documentation. The other parent will no doubt contradict
your assertions that you provided much of the care. Independent
documentation may include:
Be able to relate
who the child(ren)’s friends are and what activities they enjoy
The evaluator will be
interested in which parent is able to provide the greater stability for the
child. Stability includes a stable residence and a stable job. You may wish
to document the ways in which you have provided greater stability in the
past. You obviously will not emphasize those areas that do not favor you.
To effectively present the
areas where you have provided or are able to provide more stability, you may
wish to create a detailed charts. Visual aids help to present a clear
picture to the evaluator. For example you may wish to create a chronological
chart regarding each parent’s residence and how many times the child has
changed residences or schools. You may also wish to create a summary of each
parent’s employment to demonstrate stable financial circumstances.
Independent verification is also very helpful. Where possible, you may wish
to procure documents demonstrating residence changes such as leases,
purchase agreements or real estate taxes.
If you are raising issues
of endangerment you must relate specific incidents. Endangerment may
be physical, emotional or developmental. A calendar may be helpful to
document the dates of the incidents. Documentation can carry critical weight
with this type of allegation. Documents may include:
documenting injuries from abuse or lack of supervision;
documenting complications because of neglect - health issues such as
asthma from cigarettes smoke or lice from lack of hygiene;
relating to police calls to the other parent’s home;
for the child or the parent;
Criminal or driving
the other parent;
Criminal or driving
individuals that have significant contact with the minor child(ren);
may document attendance problems, school performance problems,
counseling issues or erratic child behavior while in the other parent’s
care or after returning from the other parent’s care.
Endangerment only exists if you tie the other parent’s conduct into
the child’s care and the child’s best interests. For example, if you
allege the other parent has an alcohol problem. It only will be effective if
you can relate specific incidents where the alcohol use or abuse affected
the minor child. (eg. The parent passed out on the couch while the
child played unsupervised. The parent drove the child in the car while
intoxicated. The parent was out partying consistently while the child was be
cared for by a stranger.)
The custody evaluator will
want to know what your proposal is for parenting. You should be prepared
with research, facts and answers. You may wish to write out your answers to
the following questions so that your response seems thought out. Do not over
prepare, your response should not sound mechanical. The answers should
Where will the child
live? Why is that in the child’s best interests?
What school will the
child attend? Why is that in the child’s best interests?
What will your work
Will that allow you
sufficient time to supervise the child?
What schedule do you
propose for the other parents?
How does that schedule
Why is that schedule in
the child’s best interests?
The custody evaluator is also looking at which parent is more likely to
facilitate contact with the other parent. If you appear to be an
unreasonable obstructionist with regard to the other parent’s contact, it
may be used against you.)
In a custody proceeding it
is important to maintain a notebook including dates that events occur
relating to the care of your child. What is the daily routine? Who
takes them to the doctor? Who takes them to school activities? List any
concerns regarding the other party’s parenting including the method of
discipline, drug use, alcohol use, disabilities or neglect.