Custody Evaluations

Custody Evaluations are yet another in a long line of intimidating events that you are likely to endure during a high-conflict custody case.  As with any outsider, every evaluator has their own inherent biases.  Unfortunately, you have little control over that and very often you won’t even discover it until such time as you’re going through the process or are blindsided by a scathing report that leaves you thinking that it can’t possibly be about you.

Your lawyer will undoubtedly tell you, as mine told me, that the courts put a great deal of weight towards the CE’s report and recommendations.  Indeed, that can be a tremendous burden, particularly when you can’t call many government organized and government run evaluation programs to testify about their findings.

Read on… After going through my own experience with both court-appointed, county-employed (or state-employed) “custody evaluators” and a private evaluator, I strongly recommend finding a way to invest in the private evaluator after doing your due diligence.  Before moving into a short description of court-appointed custody evaluations, you must realize the single critical difference. A private evaluator is subject to being called as a witness/expert witness.  Whether the evaluation helps you or hurts you, you have the ability (for additional expense) to call the evaluator in to support their findings.  They can be called to testify about all aspects of their report. A court-appointed (or county-employed/state-employed) evaluator very often is not subject to being called as a witness.  They are not subject to accountability for whatever they put in their report or recommend to the court in terms of custody of the children.  Read the paperwork you receive carefully.  In most cases you will be made to sign a waiver acknowledging that the evaluator is NOT subject to being called to testify at any hearings.  THERE IS NO ACCOUNTABILITY!

The former is a benefit regardless of the outcome of the report and recommendation.  The evaluator has to justify their report and even if it’s bad  – you have the opportunity to examine/cross-examine the report and the evaluator’s testimony. Shockingly, the latter is an alarming fact that isn’t often known to people, so if you have to go to a government-appointed option, read the paperwork carefully.  Further, such a set-up is a breeding ground for laziness, abuse, and bias to dramatically affect the lives of parents and their children.  In a worst-case scenario, the evaluator can listen to each side go through their explanations, and simply make-up whatever they want in terms of a report and a recommendation.

The government-run system is usually where you’ll find the greatest level of laziness and bias (usually towards fathers).  If you’re unable to afford a private evaluator, it can be quite scary indeed.  Get a one-sided white-wash of a negative report against you, and there is nothing you’ll be able to do or say about it in court.

My experiences haven’t been all bad, just mostly bad.  However, I’ve learned a great deal and we can help you do your very best to avoid bad evaluators and a bad evaluation.  “Jane” and I had three separate custody evaluations.  The first two were done through the court/county system.  The third custody evaluation was private.  In brief:

#1 – Was clearly biased.  It was evident in her demeanor.  It was evident in her tone.  It was evident in the way she asked questions of Jane versus the way she asked questions of me.  It was evident in the way she reacted to my responses versus Jane’s.  It was clear from our first joint visit that there was simply no way it was going to go my way and it didn’t.  I was stuck because is was court-ordered and county run.  The report reflected her obvious bias.  I couldn’t do anything about the falsehoods, the embellishments, and some very disturbing inaccuracies about things said, discussed, and reactions as detailed in the report.  Recommendation: Overwhelming primary custody to mother.

#2 – Was clearly on the ball.  She was clearly unbiased.  Her voice, her demeanor, and her body language demonstrated she was listening carefully and hanging on our every word.  She called out any inconsistencies in what either of us may have communicated and gave fair time to explanations.  This CE “had Jane’s number” and repeatedly expressed concern over her hostility, her inability to leave the past behind and focus on the children, and penchant for litigating the slightest issue, among other things.  Unfortunately, this CE left some critical issues out of the report and, due to a change in distance between the homes, recommended primary continue with the mother, but with substantial additional time to the father.

#3 – Was clever and deceptive. I would only find this out later when I was introduced to a horrifyingly one-sided report that essentially concluded that I was everything that was wrong with the world and Jane was “sugar and spice and everything nice.”  Perfect parent.  Perfect wife.  Perfect everything.  Too perfect.  Fortunately for me, the perfection articulated in the private report, which recommended just short of sole custody to Jane… fed Jane’s warped sense of self and Jane called this evaluator as an expert witness.  Her witness.  Her expense.  Our long and deliberate cross-examination.  The judge was so aghast at this evaluator’s report and testimony that the entire (very expensive) evaluation was thrown out of the proceedings after 2 days of testimony.  That’s the benefit of being able to call an evaluator in to testify, whether an ally or an adversary.

Most court-ordered, county run organizations don’t allow that and you sign a waiver acknowledging and permitting no accountability. Still, to be sure, there are no guarantees, “public or private” evaluator, that you won’t catch one who already has their mind made up before you get there, after they see how you dress, the way you style your hair, the way you gesticulate when you speak, your voice inflection… the list is endless. Good background checks on their education and work history combined with good interviewing skills and knowing how to act when you’re in their company will go a long way towards mitigating the negative output that is based upon anything other than your parenting skills (or lack thereof).

Before you embark on a custody evaluation, either assigned by the court or private – be sure to familiarize yourself with the Guidelines for Child Custody Evaluation in Divorce Proceedings.  Understanding what is expected of evaluators will give you the appropriate knowledge to recognize whether you’re being dealt with fairly or not.


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