Custody evaluation

Custody evaluation (also known as "parenting evaluation") is a legal process, in which a court-appointed mental health expert, usually a psychologist, evaluates a family and makes a recommendation to the court for a custody, visitation or parenting plan.^[1] When performing the custody evaluation, the evaluator is expected to act in the child's best interests.^[2]

Concepts

If the custody issue is not settled in the pre-trial procedures, and the parents have serious concerns about each other's ability to parent the children involved, a child custody evaluation may be appointed by the court, especially for the high-conflict cases.^[3] Many states now have laws in their statues that regulate the custody evaluator appointment and procedures.^[4][5]

The Court can order either a full or a focused evaluation. Psychological testing is also sometimes ordered.^[3] A "full evaluation, investigation, or assessment" is a comprehensive examination of the health, safety, welfare, and best interest of the child.^[3] A full evaluation typically requires about 15–20 hours of the evaluator's time.^[3] A "focused" evaluation " is an examination of the best interest of the child that is limited by court order in either time or scope. The partial or focused evaluation requires about 12–18 hours of investigation, interviews and report preparation.^[3] Evaluation cost is normally established by the evaluator, but the parents can split the charges according to their court order.

American Psychological Association publishes guidelines for evaluators.^[2] Also, Association of Family and Conciliation Courts publish guidelines which apply to the Custody Evaluators.^[6]

Comparison with regular court procedures

There are significant differences between custody evaluation and a regular court procedure, such as:^[6][7][8][9]

• Custody evaluation held by mental health expert, not a judge. The evaluation usually takes place at his/her office, not at a courthouse.
• The evaluation may include testimonies, psychological tests, child–parent observations, additional evaluations by other professionals, etc. The parties may be requested to provide some documents to the Evaluator.
• Since the custody evaluators hearings are not held in court, many rules of civil procedure and due process do not apply.
• Parents are not required to be sworn before the evaluation testimonies, unlike in court.
• Law does not explicitly guarantee a right for either party to hear another party's evaluation testimonies, so in some cases the opposite party cannot object during the evaluation testimony, even in cases when the objections would be permitted in Court testimonies.
• The custody evaluator is not obligated to record a full transcript of testimonies or provide the transcript to the other party.
• The evaluator is not obligated to provide either party with a copy of supporting documents submitted by other side during the evaluation process.
• The evaluator is not required to provide in the final recommendations a complete list of facts or legal factors on which the decision is based. Evaluators are allowed to base some conclusions on feelings, general impressions and assumptions.
• The evaluator can decide if lawyers are permitted during the testimony of the parents. The absence of the attorneys may bring the evaluation cost down, but it also can result in legal underrepresentation of either party in the proceeding.
• Court objection rules do not apply to custody evaluations, such as rules allowing parties to object to form of the questions, irrelevant questions, calls for opinions, misleading questions, prejudicial evidences, badgering, compound questions, leading questions, hearsay evidences, illegal evidences, etc.
• Attorneys are allowed to talk with the evaluator about the case in ex parte communications (i.e. out-of-court), which is forbidden for judge and jury communications with attorneys in a court proceeding.
• It may be hard to appeal evaluator's final conclusions because recommendations can be based on general impressions, and evaluators are not required to record full transcripts or provide copies of evidences on which they have based recommendations.
• Cost of the custody evaluation may be lower than cost of the regular court proceeding, especially if both parties agreed on the evaluator's recommendations and settle the dispute without of objecting the evaluation final report in court.
• Custody evaluators are protected by quasi judicial immunity from lawsuits which is similar to judicial immunity.^[10]

Controversy

The custody evaluation process does not comply with many due process rules. However, a judge can base his/her decision on the final report of the Evaluator.^[9] This creates a situation when testimony and evidence that normally would not be permitted in the court proceeding can become a basis for the court decision, in violation of the rules of civil procedure. For example: the Evaluator can base his final report on testimony that is not taken under oath; one party cannot hear and object to the other party's statements or evidence during evaluation; testimonies are not recorded; lawyers can be excluded; ex parte communications are not forbidden; the Evaluator is not required to provide full list of facts on which his decisions are based; the Evaluator's recommendations can be based on guess and personal feelings; etc.^[9] All this may infringe the legal right of a person to the procedural due process, which is guaranteed by Fifth and Fourteenth Amendments to the United States Constitution. Also, non-compliance with due-process rules makes it very hard to object to the final evaluation report in higher appellate courts.

Many of the Evaluators are paid hourly, so this may potentially create a conflict of interest, because the evaluator may financially benefit from prolonging the evaluation unnecessary.^[9] Even when the evaluator is paid a fixed amount, he/she can order additional evaluations or proceedings to financially benefit from, and the client would be afraid to object because the evaluator can give a bad evaluation in return.^[9] For example, there is a possible conflict of interests when same psychologist provides custody evaluation and later recommends to appoint himself or his office partner into the parenting coordinator role, so laws in some states and AFCC guidelines explicitly prohibit this practice.^[11] However, there is no legal prohibition for it in most states, so it is not illegal there.^[7]

Since the custody evaluators are not lawyers, they sometime can enter legal mistakes into the recommendations, for example, there were some cases when the orders drafted based on the evaluator's recommendation were missing mandatory state requirement to set forth the minimum amount and access of parenting time for noncustodial parent, which is normally required by state laws.^{[7][11][12][13][14][15][16]}

References