BY MARIANNE HOWLAND AND GEORGE SHAKE
A “Child Custody Evaluation” is a process through which a licensed and trained professional gathers information and provides opinions, recommendations, and answers to specific questions asked by a court regarding children in a divorce or custody modification.
A Child Custody Evaluation can help the court determine conservatorship, possession, and rights and duties from a trained and neutral expert. The evaluator reviews medical records, education records, and conducts home visits. Additionally, because evaluators observe and interview the children in a case, this is a way for a child’s concerns and desires to be presented to the court.
However, it cannot be overstressed that a Child Custody Evaluation is not a good choice for every case. They can be weighted very heavily by the court. As with all experts, the evaluator may be biased or incompetent in numerous ways. These evaluations are rarely completed within four months and typically take more than a year. Additionally, they can be costly, ranging from $2,500 to $20,000 per side. That does not include legal fees related to the evaluation and the possible fees of a consulting expert or a rebuttal expert.
If you decide that a Child Custody Evaluation is a good idea for your client, you will need a court order. Review the relevant section of Chapter 107 of the Texas Family Code to ensure that your order is compliant. You and the other attorney should attempt to agree on the evaluator. This is a crucial decision. Ask attorneys you trust for their recommendations.
During this evaluation process, your client should present current and relevant evidence to the evaluator. You should review all evidence that is being produced to the evaluator. It is important that anything of concern in any records be properly explained to the evaluator. Also, if records support your client’s contentions, you should be sure to point those out.
The evaluator will collect information from numerous sources. The other party is likely to make allegations against your client and you should ensure your client has a chance to address any allegations before the evaluator finalizes the report.
The Child Custody Evaluation process concludes with the evaluator preparing a written report and providing it to the attorneys. The Child Custody Evaluation report cannot be submitted to the court absent a stipulation or in accordance with the rules of evidence at trial.
If you are dissatisfied with the Child Custody Evaluation report, one of your first tasks is to request the evaluator’s entire file, including all communications involving the evaluator. Another common strategy is to hire a rebuttal expert to provide a detailed analysis of the report. If that is too costly, you should go through each requirement in Chapter 107 of the Texas Family Code that pertains to Child Custody Evaluations and ensure the evaluator met every requirement. Ensure that the report complies with every aspect of the court’s order. Review the evaluator’s rules of practice under their license and their Curriculum Vitae (CV) to ensure the evaluator has not gone astray of those rules.
Determine if the report includes all the relevant information that your client provided the evaluator. Review the evaluator’s invoices to determine who in the evaluator’s office did what work on the evaluation and if the evaluator complied with the requirement to conduct balanced interviews with the parties.
This expert operates under very specific rules that do not pertain to other experts. For example, this evaluator is required to disclose all substantive communications between the evaluator and an attorney of record. Therefore, preparing this expert for testifying is not typical. However, these experts are just like others in that they cannot testify as to hearsay. They can only rely on hearsay when giving their opinions.
Some cases have been won or lost based on a custody evaluation. Although results are not always that dramatic, a custody evaluation can inform the court on numerous issues and do so in a way that you and your client cannot. However, the cost and length of time it takes to complete a custody evaluation makes it an impossible option in some cases. Additionally, your client’s conduct, parenting skills, co-parenting skills, and the skills of the evaluator could all negatively impact your case. When deciding whether your case needs a custody evaluation, analyze the issues outlined above to be sure it is the best decision.
– Originally Published in DBA Headnotes September 2020