A Child Custody Evaluation
A child custody evaluation is an investigation of children and parents by a mental health professional, resulting in a report about the family and recommendations for a custody and parenting plan. Family Code 3110-3118.
A full child custody evaluation is, by definition, an adversarial process. A custody evaluation presents a unique set of issues and challenges for counsel and clients. In child custody evaluation, the person being interviewed cannot be represented by counsel. He or she must be interviewed and observed repeatedly by the evaluator under great stress without counsel present. From the evaluator’s perspective, this is only normal and required, so as to fulfill her responsibility to understand the client’s functioning and its implications for parenting. From the perspective of an attorney, usually, it is as if the client were involved in a proceeding without due process.
Basic Elements of Evaluations
During a child custody evaluation, the evaluator collects, manages, and analyzes various information about the parents. While each evaluator uses their preferred method, procedure, and style to acquire the required information, most evaluations will include some basic elements.
These basic elements of child custody evaluation process include:
- Individual interviews of each parent;
- Interviews of each child;
- Interviews of each child with each parent;
- Home visit to each parent’s home;
- Review of various documents submitted by counsel and each parent;
- Interviews of collateral contacts in the community proposed by each parent or as requested by the evaluator; and
- Psychological testing of parents and children.
Sources for Evaluation and the Need to Diversify
The evaluator is appointed by the court and is required to be independent and neutral. In order to draw proper conclusions for custody and visitation recommendations, the evaluator is expected to gather information from several sources.
Diversification of sources assists to corroborate findings and give depth and perspective to the inquiry. Different sources are also essential in concluding and making interpretations regarding the child’s development needs, quality of attachment to each parent, social environment, and reaction to parental conflict.
When are Child Custody Evaluations Performed?
An evaluation is performed when parents cannot work together and agree on the details of the custody and parenting arrangements for their children.
In cases that involve allegations of domestic violence, child abuse, or high conflict between parents, a child custody evaluation is preferred to other alternative dispute resolution methods. This is due to the danger that the parent or child may face and the uncontrollable nature of the dispute.
Factors in Deciding to Seek Evaluation
Evaluations can be costly and time-consuming. Before choosing a child custody evaluation, parents must exhaust all other non-adversarial methods to a custody agreement.
An attorney must review the risks and benefits of pursuing an evaluation before proceeding with it. Some of the factors to consider include:
- The cost of the evaluator’s fees;
- The cost of attorney fees
- The intrusion into the client’s life;
- The intrusion and anxiety for the children; and
- The risk of exposing the client’s private matters that would otherwise be undisclosed (e.g., personal history; family relationships; habits and conduct; mental and emotional status; prior involvement in criminal or juvenile proceedings).
The evaluation process is not confidential to the extent that there is no right to privacy that attaches to any statement or document that the parents give to the evaluator. This is usually different from the privileged relationship that exists with a confidential child custody mediator.
How does a Child Custody Evaluator Get Appointed?
There are several ways in which an evaluator can be appointed. These include;
1) By Stipulation
When parents exhaust other methods for resolving child custody, they may agree to stipulate the appointment of an evaluator. This stipulation is subject to the court’s overall authority in custody matters to make orders that are in the best interest of the child and the statutory requirements for the qualification of an evaluator.
2) Court Order
Order on Party’s Motion
In cases where the parties do not agree to appoint an evaluator, the party seeking an evaluator can file a motion requesting an appointment using Request for Order, after which the court can make an order. The court then appoints an evaluator for the best interest of the child.
Order on Court’s Own Motion
Some courts have a procedure to review custody issues after mediation has been unsuccessful or as part of their family-centered case resolution process. At these proceedings, the judge may order an evaluation if it appears that there are significant contested issues that are not amenable to other forms of resolution.
Selecting and challenging the Appointment of an Evaluator
In some cases, parties can decide to retain a private mental health professional to carry out the evaluation. Usually, these evaluators are a clinical psychologist or a psychiatrist who has experience in clinical settings or practices that focus on children, adults, and family. They may also have specialized in domestic violence, child abuse, and children with special needs.
It is advantageous to seek private professionals because they will spend more time in the evaluation process compared to the family court services staff and give better recommendations and conclusions.
Child custody evaluation – a parent disagrees with the recommendations
If a child custody evaluation has taken place in California and the evaluator has made recommendations, it is generally an important factor that the judge considers when making a custody order. However, if a parent disagrees with the recommendations, there are a few steps they can take:
- Review the custody evaluation report: Obtain a copy of the custody evaluation report and carefully review its contents. Understand the reasons behind the evaluator’s recommendations and any supporting evidence or observations provided.
- Seek legal advice: Consult with an experienced family law attorney who can help you understand your rights, obligations, and potential options. They can provide guidance based on their knowledge of California family law and experience in child custody matters.
- File a motion for modification: If you strongly believe that the custody order is not in the best interest of the child, you can file a motion for modification with the court. This motion requests a change to the existing custody order based on new evidence or a change in circumstances. You will need to present compelling reasons and evidence to support your case.
- Present counter-evidence: As part of the modification process, you can present counter-evidence to challenge the custody evaluation recommendations. This may include obtaining additional evaluations from other qualified professionals, gathering witnesses or experts who can testify on your behalf, or presenting documentation that contradicts the evaluator’s findings.
- Request a hearing: If the court finds sufficient grounds to consider your motion for modification, a hearing will be scheduled. During the hearing, you or your attorney can present your arguments, evidence, and testimony to challenge the evaluator’s recommendations and persuade the judge to modify the custody order.
It’s important to note that family law procedures and requirements can vary, so consulting with an attorney who is familiar with the specific jurisdiction and court practices in California is essential to navigating the process effectively.