Bar Bulletin

September, 2003

MSBA News

From Negotiation To Litigation: Professional Custody Evaluations
By Anne Marie Jackson

A custody evaluation can be an invaluable tool both in resolving a custody dispute through a negotiated agreement and in litigating a custody matter. After all, in a custody evaluation a neutral professional trained in psychology or social work has an opportunity to make recommendations based on their observation of interactions between the parents and children, interviews with collateral contacts, results from psychological tests on the parents and children and a review of relevant reports, such as school report cards and medical records. In many cases, the information and recommendations provided by the custody evaluator might not otherwise be available to the court or to the mediator. As with any other important tool, however, a custody evaluation needs to be considered and pursued thoughtfully and diligently.

Make the decision regarding whether or not to seek a custody evaluation early and follow through. A thorough custody evaluation consumes a substantial amount of time – easily 60 to 90 days – so a decision regarding whether or not to request a custody evaluation should be made early in a case. If the case is being litigated, in many counties in Maryland, a custody evaluation should be requested at the Scheduling Conference. While a custody evaluation can be requested later in a case, deadlines and court dates begin to intrude upon the custody evaluation process. Once a custody evaluation has been ordered, make sure that the process is started in a timely manner. Even if the parties are discussing settlement, the custody evaluation process should not be unduly delayed because such a delay could lead to a rushed evaluation or the need for a continuance.

Part of the decision to seek a custody evaluation is whether to ask the court to appoint a private custody evaluator or, if available, a custody evaluator employed by the court. Most custody evaluators employed by the court do not have doctorate degrees, do not conduct any psychological tests and are only able to direct limited resources and time toward any evaluation. For instance, the court-employed custody evaluator may meet each parent individually and observe the child interacting with each parent on only one occasion. In contrast, a private evaluator will often have a doctorate degree in psychology and significant experience in dealing with families in crisis and will be able to direct more time and resources to the evaluation. For example, a private custody evaluator will often conduct psychological testing, meet with the parents together and individually and observe the parents and children interacting on several occasions. One of the benefits of a custody evaluation conducted by an evaluator employed by the court, however, is that such a custody evaluation is generally without cost, while a private custody evaluation can cost several thousands of dollars.

Make sure the custody evaluator has all the information that you think they need. A custody evaluator can contact collateral sources, such as schoolteachers, caregivers, family members and family friends. Present that information to the custody evaluator quickly and in an organized manner. Keep in mind that the custody evaluator may not call all of the collateral sources, so focus the list on the collateral sources that most strongly support your client’s position. Neutral collateral sources, such as teachers, day care providers and coaches, tend to appear less biased than family members and friends of one parent, who will assuredly support the position of that parent. Make sure that all of the collateral sources are aware that the custody evaluator will be contacting them and the importance of responding to the evaluator’s call promptly.

Learn the custody evaluator’s protocol. There is no such thing as a uniform custody evaluation protocol in Maryland. Custody evaluators, especially private custody evaluators, often have a defined protocol in conducting an evaluation or a list of factors that they consider in making a recommendation. Find out the protocol and prepare your client for constructively addressing the factors considered by the custody evaluator.

Do not hesitate to question the psychological tests conducted. Most of the psychological tests commonly used in custody evaluations test for dysfunction. Question the custody evaluator on the tests conducted and the purpose of the test.

The custody evaluator is a neutral evaluator and not a mediator or a therapist. The custody evaluator should not be one parties’ therapist, and the custody evaluator should not serve as a mediator. Their role is to evaluate the family and the situation and provide recommendations. This directive should be clearly set forth in the order appointing the custody evaluator. It should also be made clear that the custody evaluator is not to provide one party or counsel with information regarding his or her recommendation – such information should be provided to both parties or both counsel simultaneously. This is not usually an issue with private custody evaluators, but court-employed custody evaluators have, on occasion, in a misguided effort to mediate a resolution, indicated to one party or counsel the nature of their recommendations prior to the time designated by the court for providing such recommendations without providing that same information to the other party or counsel.

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