Many Judges, Friend of the Court Referees and family law attorneys have begun turning to custody evaluators to help guide proper decision-making in child custody disputes. Evaluators can be appointed both during the initial divorce proceedings or during post-judgment motions. If an evaluator is appointed to your case, you should discuss with your attorney the pros, cons and expectations of an evaluation. In this article we try to give you some basics about custody evaluations, but preparing for and understanding custody evaluations is complex, and you should consult an experienced family law attorney for more details.
What is a Custody Evaluation?
The first thing to understand is what a custody evaluation actually is. Generally, a privately paid psychologist or a Friend of the Court psychologist (Ph.D or MSW) employed by the Court, will meet with both parties, the minor children and will at least interview by phone other important witnesses that each party provides to the evaluator. The evaluators usually conduct psychological testing (often two tests, one long one and one short one) and review the answers to get a sense of the subjects personality, truthfulness and other traits (including aggressiveness).
However, each individual evaluator determines their methods, including how many tests and their length, to administer. The evaluator will then write a report, where they make recommendations about parenting time, custody and other miscellaneous provisions regarding how the parties should interact and communicate. The reports usually address each of the best interests of the child factors used by the Courts, and found in the statutes regarding child custody, specifically, M.C.L. 722.23. Depending on the scope of the evaluation, their recommendations will address legal custody and parenting time between the minor child(ren) and each parent.
Pros of Evaluations:
In high conflict cases where the parties simply cannot agree amongst themselves on a custody arrangement, or where there are allegations of “parental alienation,” abuse, or other significant issues, custody evaluations can be an effective way for the Court to determine what is really happening and if those types of allegations are true. In many cases, evaluations can significantly reducer the costs of litigation for the parties. Rather than having lengthy, multiple day hearings before the Friend of the Court, followed by a second hearing before the Judge when one party objects to the FOC’s Recommendation, and evaluation can answer many of the underlying questions, and, in some cases, can provide more information than the Court could otherwise obtain from simply listening to testimony and reviewing exhibits. Particularly when the parties are making competing claims of alienation and abuse, evaluations can be a good way to determine whether, one, both or neither parent is being truthful or behaving consistently with what the parties are alleging.
Cons of Evaluations:
The biggest problem with child custody evaluations is the nature of the evaluation itself. Psychology is a soft science, where the evaluators observations, experience, and expertise must be applied to the testing results. In other words, the evaluation and its conclusions are subjective. As a result, the results of the evaluation are only as good as the evaluator. Further, in cases where testimony and evidence would give the parties, essentially, a 50/50 shot with the Court in obtaining a favorable ruling, the results of a custody evaluation can completely eliminate the validity of one sides claims. If the evaluation does not go in your favor, you may end up having to settle your case with a less desirable outcome than you might otherwise have expected. Further, Judges and Referees place a lot of weight on the findings of these evaluations, and often make parenting time and child custody determinations that mirror the recommendations of the evaluators. In many circumstances, the evaluations become more than tools, they become the Court’s bludgeon by which they not only make decisions, but by which they will perceive the parties. The Courts will remember the results of the evaluations, and sometimes will abide by them for years, even when the recommendations are clearly no loner working for the parties or the children.
Suggestions: Evaluations are complex.
Knowing how to properly prepare for them, and the consequences they can have for the parties, the children and the future of the case, are of the utmost importance. If you have an evaluation scheduled, or think that an evaluation might be a good idea in your divorce, child custody or other family law case, you really need to consult with a knowledgeable attorney. At Fowler & Williams, PLC, we have significant experience handling these types of cases, and have helped dozens of clients prepare for these types of evaluations. Give us a call so that we can help you.