Family & Juvenile
Law Section “Top 10’s”
Top Ten Things To Consider When Your Case Has A Court-Ordered Private Custody Evaluation
By James Milko, Esquire and Leslie Billman, Esquire
- Don’t hesitate to exercise your input into the selection process. If you know your case likely will involve the appointment of a Custody Evaluator, do your homework in advance. Find out who is on the Court’s list (if applicable) and seek input from sources (including colleagues) as to who in theory might be best or worst for your case.
- Make sure there is clarity in the Order for the Custody Evaluation. This seems simple, but it is of critical import. Does the Order for the Evaluation fully and properly define the scope of the evaluation, including the specific issues regarding which the Court desires the Evaluator to make recommendations? [For example, there may be a huge difference between an evaluation that seeks to determine whether a parent has a psychological issue that impairs parenting, versus an evaluation in which the Evaluator is asked to make recommendations regarding custody or visitation.] Does the Order limit what the Evaluator may consider in any way? Per the Order, can the Evaluator’s Report and Recommendations come into evidence in-and-of-itself, or must the Evaluator actually be called as a witness? The ultimate substance of a custody evaluation can be greatly impacted by the initial decree that orders said evaluation.
- Work with the Evaluator during the initial phases to project a reasonable schedule and completion date for the Evaluation, regarding which the counsel, parties, and Court are aware. Yes, the Court often sets a deadline for the completion in the evaluation in the initial Order. However, this is often an arbitrary date. Determining early-on whether the process can be completed in that time-frame – and altering the Court’s scheduling Order if appropriate – may safe significant cost and heartache later down the road.
- Psychologist does not equal Psychic. Psychologists and other evaluators are not psychics. Evaluators may uncover relevant background and other information during the interview process, but that is not guaranteed. They do not have magic wands that enable them to mystically divine the information. As an attorney, you owe it to your client to provide the evaluator with any necessary background, factual or collateral information that may assist in the evaluation.
- Don’t Ex Parte the Evaluator. Yes, provide information to the Evaluator. No, don’t ex parte the Evaluator. Any information that you share should be shared with the other side. Failure to do so may affect the ultimate reliability (if not admissibility itself) of the Evaluator’s findings and conclusions.
- Follow the protocol that the Evaluator establishes for the submission of information:This is common sense. At best, failure to follow any such protocols might alienate the Evaluator.
- Read Draper v. Draper, 382 A.2d 1095. The Court-appointed Evaluator is the Court’s witness. You have the right to cross-examine the Evaluator.
- Familiarize yourself with the American Psychological Association’s Guidelines for Custody Evaluations. An Evaluator’s failure to strictly abide by the APA Guidelines does not necessarily invalidate the Evaluation. However, review of the Guidelines may expose significant flaws in an evaluation or, at minimum, provide counsel with a number of arrows in his or her cross-examination sling.
- If applicable, make sure your client pays his or her share of the Evaluator’s fees in timely fashion: Need I say more? Evaluators like to get paid for their work the same as everybody else. How do you think an Evaluator may feel about making a recommendation regarding a party that is stiffing them on the bill?
- Fill in the blank: ______________________. Seriously, there aren’t just ten things to consider, let alone a TOP ten. What do you think this is, the David Letterman show?