In most states when there is a custody dispute, the Court
appoints a custody evaluator. Depending on your state, that evaluator may work
for Court Services or may be a private individual or attorney called a Guardian
As part of the “Custody Evaluation” an evaluator
meets with the parties and evaluates the custody issues based on the factors
for determining custody that are spelled out under each state's statute. Once
the custody evaluation is complete the evaluator submits a recommendation to
the Court either verbally ofr in writing which will
recommend a custody and parenting schedule that the evaluator believes is in
the child’s best interests.
This report is a critical element of any custody case case. Although custody studies may be challenged in court,
many Judge’s defer to the recommendations of the
evaluator because, unlike the parties, they are deemed to be an independent
witness without any personal Interest in the outcome. As a result how you
relate your case to the evaluator is very important.
TWO TYPES OF CUSTODY
As you may know, there are two types of custody: Legal and
Legal custody refers to the right of the parents to
participate in important decisions in the lives of their child(ren). This specifically includes decisions related to
schooling, medical care, religion, extra-curricular activities and other
important events. In most states there is a very strong presumption that these
responsibilities should be shared by the parties. In most cases, the only time
that legal custody is not shared is when the parties demonstrate a complete
inability to communicate or where there has been domestic abuse.
Physical custody is what most people think of when they hear
the term custody. It refers to the primary physical residence where the child
will live. Each state may have a different presumption. For example, while the
State of Minnesota carries a presumption
favoring sole physical custody to one parent or the other, Wisconsin has a presumption whichfavors joint physical placement.
STANDARD FOR GAINING CUSTODY
When custody is being determined for the first time, the
Court must determine what is in the child(ren)’s best interests. To determine what is in the child(ren)’s best interest,
the court weigh the factors that are set out in each state's statutes. These may include issues related to who
was the primary caretaker during the marriage, and which party provides the
greatest stability for the chidlren.
WORKING WITH CUSTODY EVALUATORS
The custody evaluator often has broad power to require
psychological testing, chemical dependency evaluations and urinalysis tests.
How you interact with the custody evaluator may be a critical element of your
Custody evaluators will oftentimes make you believe that
they agree with your side of the case. This is done so that you drop your
guard. Never assume that the evaluator’s report will favor your position.
Custody evaluators are also people. That means they react to
personalities. You are best able to present your case to an evaluator if you
appear open and honest.
Do not argue with the evaluator. Make eye contact and listen
when they speak. This establishes a connection. It may help to nod your head as
they speak even if you disagree with what they are saying. When you disagree,
tell them “I see your point, but...” or agree first “I agree,
but would you consider this to be important....”
The custody evaluator does not care about good guys and bad
guys. The evaluator cares about what is in the “best interests of the child(ren).” To relate your
case to the evaluator, you must speak his/her language. Your statements must
relate in some way to what is best for the child not the parent. For example,
the statement, “my husband drinks too much”, is incomplete. It does
not relate how the drinking affects the child(ren). Always relate how the conduct affects the child(ren). A better statement
“My husband drinks too much. Because of that, he is
rarely home and when he is, he is:....
abusive....spends little quality time with the children....is unable to help
the kids with their homework....”
Provide the evaluator with the documents supporting your
Provide the evaluator with the names of collateral contacts,
people who are aware of your strong points as a parent and the other
party’s weak points. (It is usually better not to include relatives as
part of your contacts since they may have a bias).
ALWAYS ASSUME when you go to court or visit a custody
evaluator that you may be ordered to provide a urine sample for testing to
determine if you have used drugs or alcohol.
CUSTODY STUDY ELEMENTS
Although each custody evaluator may have a slightly different
approach to performing custody evaluations there are some things you should expect :
Initial Interview with Evaluator.
At the initial interview, the evaluator will discuss at length the past history
of care with the child. The evaluator will attempt to determine who was the primary caretaker.
BE PREPARED! At the initial interview arrive prepared with a
chronology of events clearly set out.
Parenting Plan. The evaluator will ask you what
parenting plan you believe is best for the children. Have a specific schedule
in mind before you meet with the evaluator. In fact, I would suggest have several
options. It is important that you
are able to support your proposal.
Be prepared to answer why the schedule you offer benefits the children.
Home Visits. The evaluator will make at least one home visit
to watch you interact with your child(ren). The evaluator is watching to see:
Engage the children. the evaluator
is watching to see if you actively play with and interact with your child (It
is a good idea to engage you children in an activity before the evaluator
arrives at your home. By doing this the activity will seem more
normal and minimize the presence of the evaluator. You should involve yourself with the the children in the activity. Do not simply act as an
Set Boundaries. The evaluator is also watching to see if
you set appropriate boundaries for the child and whether the child obeys those
Discipline. The evaluator is also judging the form
of discipline that you use. As a
general rule corporal punishment is frowned upon. The use of time outs or
deprivation of activities is viewed favorably. Try not to shout at your child
and do not use inappropriate language.
Child’s reaction to the parent. The evaluator will also try to make an
assessment of emotional bond between the parent and child. Does the child call you
"mommy" or "daddy". Does the child seek physical interaction.
Home Environment. The evaluator is
also reviewing the physical environment. Is the home clean? Is it safe? Remember to put away and alcohol
containers, empty the garbage and clean.
Collateral Contacts. The evaluator
will ask for a list of persons that you think the evaluator should contact.
Family members are usually not good contact since they may be biased in your
favor. Where possible use independent contacts such as counselors, daycare
providers, and school teachers.
Alcohol Assessments. Where there
are allegations of alcohol or drug abuse, the evaluator may refer you to a
counselor for a chemical dependency evaluation. It is important that you
cooperate in that process.
Psychological Evaluations. Where
there are allegations of emotional or anger problems, the evaluator may refer
you to a counselor or psychologist for a psychological evaluation. It is
important that you cooperate in that process. Make sure that you communicate
with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required.
A failure to cooperate will appear in the evaluation.
WHAT YOU SHOULD TRY TO DEMONSTRATE
Remember, there are six magic words in custody evaluations “Best Interests of the Minor Child”. Custody
evaluators listen for issues that relate to that phrase. You should relate how
each of your proposals is beneficial to your child. Wherever possible use phrases that mean “best
interest of the minor child” without using those exact words. Using the
exact words sounds too legalistic and prepared. Your statements should sound
There are certain things that evaluators look for in their
custody evaluation. You should discuss these issues with the evaluator
truthfully since the evaluator will, to a degree, assess your credibility. The
issues you should be prepared to raise are the following:
Primary Caretaker.Where has the
child lived since birth? What was the extent of contact each parent had at each
phase of the child’s life? What responsibilities did each parent have?
The best way to support the contention that you provided
care for the minor child is through independent documentation. The other parent
will no doubt contradict your assertions that you provided much of the care.
Independent documentation may include:
Daycare or school records demonstrating drop off and pick
ups or attendance at parent-teacher conferences. Even if you do not have
documents demonstrating attendance at school functions at least verify the
dates of the conferences and familiarize yourself with the daycare
provider’s or teacher’s names. The more information you are able to
provide in that regard the more credible you will appear as an active parent.
Medical records may document which parent brought the child
in for a medical or dental appointment. If you can acquire these records prior
to meeting with the evaluator, do so.
Homework assignments or report cards may require a parental
signature before they are submitted at school. That signature may provide
independent verification that the parent reviewed or was actively involved in
the child’s schooling. Wherever possible acquire and retain these documents.
Provide them to the custody evaluator to support your claims that you were
actively involved in the children’s
Be able to relate who the children’s friends are and what activities they enjoy in
Stability. The evaluator will be
interested in which parent is able to provide the greater stability for the
child. Stability includes a stable residence and a stable job. You may wish to
document the ways in which you have provided greater stability in the past. You
obviously will not emphasize those areas that do not favor you.
To effectively present the areas where you have provided or
are able to provide more stability, you may wish to create a
detailed charts.Visual aids help to present a clear picture to the
evaluator. For example you may wish to create a chronological chart regarding
each parent’s residence and how many times the child has changed
residences or schools. You may also wish to create a summary of each
parent’s employment to demonstrate stable financial circumstances.
Independent verification is also very helpful. Where possible, you may wish to
procure documents demonstrating residence changes such as leases, purchase
agreements or real estate taxes.
or Neglect. If you are raising issues of endangerment you must relate
specific incidents. Endangerment may be physical, emotional or
developmental. A calendar may be helpful to document the dates of the
incidents. Documentation can carry critical weight with this type of
allegation. Documents may include:
reports documenting injuries from abuse or lack of supervision;
reports documenting complications because of neglect - health issues such
as asthma from cigarettes smoke or lice from lack of hygiene.
reports relating to police calls to the other parent’s home;
child protection reports;
records for the child or the parent;
other parent’s criminal or driving record;
criminal or driving record of individuals that have significant contact
with the minor child;
records may document attendance problems, school performance problems,
counseling issues or erratic child behavior while in the other
parent’s care or after returning from the other parent’s care.
REMEMBER: Endangerment only exists if you tie the other
parent’s conduct into the child’s care and the child’s best
interests. For example, if you allege the other parent has an alcohol problem.
It only will be effective if you can relate specific incidents where the
alcohol use or abuse affected the minor child.
The parent passed out on the couch while the child played unsupervised. The
parent drove the child in the car while intoxicated. The parent was out
partying consistently while the child was cared for
by a stranger.
Parenting Plan. The custody
evaluator will want to know what your proposal is for parenting. You should be
prepared with research, facts and answers. You may wish to write out your
answers to the following questions so that your response seems thought out. Do
not over prepare, your response should not sound mechanical. The answers should
will the child live? Why is that in the child’s best interests?
school will the child attend?
- Why is
that in the child’s best interests?
will your work schedule be?
that allow you sufficient time to supervise the child?
schedule do you propose for the other parents?
does that schedule provide stability?
- Why is
that schedule in the child’s best interests? (Remember: The custody
evaluator is also looking at which parent is more likely to facilitate
contact with the other parent. If you appear to be an unreasonable
obstructionist with regard to the other parent’s contact, it may be
used against you.)
In a custody proceeding it is important to maintain a
notebook including dates that events occur relating to the care of your
What is the daily
routine? Who takes them to the doctor? Who takes them to school activities?
List any concerns regarding the other party’s parenting including the
method of discipline, drug use, alcohol use, disabilities or neglect.
PRIVATE CUSTODY EVALUATIONS.
You may also have a private custody evaluation performed by
an independent professional. Oftentimes the only way to combat a biased or
unfavorable custody evaluation is with a private custody evaluation. Custody
evaluations can be costly and may run anywhere from $2,000 to $8,000.
Visit us online at Minnesota
Submitted by: Maury Beaulier *
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