Custody Evaluations:
Information for Divorce Attorneys

A custody evaluation plays an important role in the court's detrmination of custody and access. They are being relied upon increasingly as the number of contested custody cases continues to climb. The challenges for attorneys when it comes to custody evaluations are threefold:

Will My Contested Custody Case Withstand a Custody Evaluation?

Divorce attorneys represent all kinds of parents seeking a divorce. Some parents make easy clients while other parents may be unreasonable and vindictive. Still others may be challenged by issues related to addictions, mental illness or less than optimal lifestyle choices. Regardless of whether an attorney has the most ideal parent as a client or one that is less than ideal, that parent still needs to be represented well. When it comes to custody evaluations, the less than optimal parent is probably at a serious disadvantage. In these cases, it may be wiser to first explore alternative approaches to resolving the custody dispute. Some of these options are: mediation, supervised visitation and/or a graduated access arrangement rather than going the custody evaluation route.

On the other hand, there will be times when a custody evaluation is not an option. At this point, the best course of action is ensuring that order for the custody evaluation is worded in such a way that it will examine the issues that have the best chance of identifying the client's positive qualities. This can be done by including specific referral questions in the court order for the custody evaluation. While the use of referral questions is not widely used or well known, they can be extremely effective in guiding the direction and focus of a custody evaluation. Too often, open-ended orders for custody evaluations (e.g., those that read: "to determine the best interests of the children") leave the scope of the evaluation completely at the discretion of the custody evaluator. When this happens, there is a risk that the issues a parent is most concerned about may not even be addressed. By having referral questions included in the order, the custody evaluator is then required to answer and/or address them. An example of a typical referral question is: "How likely is it that either parent will support his or her child's relationship with the other parent?" It is not uncommon for an order for a custody evaluation to include 5-10 referral questions or more.

What Can I Do to Ensure that My Client is Well Prepared for a Custody Evaluation?

A parent's confusion and anxiety in anticipation of and during the custody evaluation process should not be overlooked. The reality is - most parents are poorly informed about a custody evaluation and therefore, they are also ill prepared for it. Many parents do not even know what a custody evaluation is all about or what is expected of them. Others have expectations about the custody evaluation process that are inconsistent with what will actually occur. Being poorly informed could have have an adverse impact on what is hoped to be a positive outcome in a custody evaluation.

To assist your client prepare for a custody evaluation - especially those you have concerns about - it is advisable that the client has a consultation regarding the specific aspects of the custody evaluation process. Apart from learning about the custody evaluation process and what to expect, a client will also learn how to conduct him or herself during the custody evaluation interviews. In addition to being properly informed, another critical factor in achieving a positive outcome in a custody evaluation is knowing how to effectively interact with the custody evaluator involved. Even when using an established protocol for custody evaluations, custody evaluators tend to have their own style or way of doing things. This means that a parent must know how to be responsive to the custody evaluator's specific way of conducting the custody evaluation. For example, it is important to know how to appropriately respond to questions asked and also to know what kind of information should be provided to the custody evaluator and when it is best to provide it. It is important that the client learns how to communicate his or her concerns about the other parent without coming across as "bad-mouthing".

Since there is no blueprint or template for how to get through a custody evaluation, it is important that a client learns how to be appropriately responsive to your custody evaluator.

How to Ensure that the Custody Evaluator Chosen is the the Right Fit for My Case?

Not all custody evaluators are created equally. The problem is that given the litigiousness of the custody evluation field, there is not a lot of people conducting custody evaluations. Many professionals do not wish to testify in court. As such, the field of custody evaluators seems to be shrinking in many centers. It is therefore very important that the custody evaluator selected is not only qualified, but also a good fit for your case. The following will be helpful in guiding your decision making:

FIRST - You need to thoroughly review a custody evaluator's curriculum vitae (CV). It is important that the custody evaluator has received specific training in this area. If a custody evaluator has done any research, attended conferences/workshops or given lectures related to custody concerns, this information will also be listed in the CV. It is strongly recommended that you review the Code of Conduct for the custody evaluator's licensing board. You will find that most require their licensed professional to have acquired "competence" in their chosen areas of practise.* This means that the professional should have some formal training in conducting custody evaluations. Suprisingly, many custody evaluators do not and for that reason, it is essential that the professional conducting your client's custody evaluation is well trained and experienced in that field.

SECOND - If a psychologist is conducting your client's custody evaluation, be sure to familiarize yourself with the document, Guidelines for Child Custody Evaluations in Divorce Proceedings. This document was developed by the American Psychological Association (APA), an organization that all licensed psychologists in the U.S. are members of. As a member, the psychologist should be familiar with and adhere to the policies, rules and guidelines the APA sets out. The "Guidelines for Child Custody Evaluations in Divorce Proceedings" spells out the procedures that should be followed in custody evaluations. It is important that you and your attorney become familiar with these since many custody evaluators do not follow them. Ensure that the protocol set out in this document will be adhered to in your client's custody evaluation. Anything short of it should not be considered acceptable.