July 21, 2011

Custody Evaluations In Divorce and Parenting Time Cases – An Overview

Many times, parents come to our office with custody and parenting time arrangements already resolved. Other times, parenting time issues can be resolved by the parties in county mediation. So what do you do if you can’ t work a plan out on your own but would still like to resolve the case short of trial? In our experience, many custody and parenting cases settle after the parties participate in a custody study, even when county mediation failed. This post is to give an overview of the evaluation process.

In a custody evaluation, an expert (usually either a social worker or a psychologist) investigates the facts of case and generates a report containing custody and parenting time recommendations for use in settlement or trial. The evaluator usually has broad power and may require the parties to provide releases of information so the evaluator can talk to other counselors, medical providers, or therapists. The evaluator may also require the parties undergo psychological tests and drug testing if appropriate. The goal is to gather as much information as possible, and make a recommendation to the court that is in the child’s best interests.

Some general things to expect during the process:

  1. The Intake. Many evaluators have a lengthy initial interview to get historical information, and determine each parent’s level of involvement with the child.
  2. Child Visit. The evaluator will meet at least once with each parent and the child to watch how you interact. This is an important element to the study, and they are looking to see if parents actively parent, set appropriate boundaries, dicipline appropriately, and watch the child’s reaction.
  3. Collateral Contacts. The evaluator will likely ask for a list of persons you think they should talk to about your parenting. Usually evaluators give greatest weight to information provided by independent contacts, like teachres, daycare providers, and other counselors.
  4. Psychological Evaluations. If appropriate, the evaluator may ask parents to take psychological tests, such as the MMPI-2TM.

While it can be a difficult process to go through, many times parents settle outside of court after seeing the report. If the report doesn’t settle the case, it can make the trial more streamlined, because the evaluator is allowed to rely on the information gathered from collateral sources when testifying, meaning less witnesses need to be called. While the court does not have to adopt the recommendations of a custody evaluator, the recommendations usually hold considerable weight with a Judge.

How a parent interacts with an evaluator can be a critical element of the case. In my 17 years of divorce experience in Oregon, I have seen good parents do poorly in the evaluation process because they (1) did not know how to communicate effectively with the evaluator, (2) did not understand fully what the evaluator was trying to do, or (3) let their negative emotions influence their responses to the evaluator. Every client participating in a custody study should talk with their lawyer about the process, what to expect, what the evaluator wants, and the best ways to interact with the evaluator.

The lawyers at Stephens & Margolin LLP have extensive experience advising clients about custody evaluations.