Custody Evaluations Used In Family Law Cases

Custody Evaluations

A custody evaluation evaluates the same things as a visitation evaluation, but it is broader in scope. In addition to what is evaluated in the parental fitness evaluation and in the visitation evaluation, the evaluator also evaluates factors relating to what is in the children’s best interest for custody. In conducting this evaluation, the evaluator weighs the factors set forth in Rule 4-903 of the Utah Rules of Judicial Administration. That rule sets forth the factors that a custody evaluator should consider, such as the following.

  • the developmental needs of a child, including but not limited to physical, emotional, educational, medical, and any other special needs, as well as the parent’s demonstrated understanding of and responsiveness to an ability to meet those needs.
  • the stated wishes and concerns of each child, taking into consideration the child’s cognitive ability and emotional maturity.
  • the relative benefit of keeping siblings together.
  • the relative strength of the child’s bond with the prospective custodians—meaning the depth, quality, and nature of the relationship between the perspective custodian and the child.
  • the “status quo” or previous parenting arrangements if the child has been happy and well-adjusted.
  • Factors relating to the perspective custodian’s character, and their capacity and willingness to function as parents. This includes their parenting skills, factors affecting a determination for joint legal or joint physical custody (essentially the party’s ability to co-parent together or inability to do so), and any other factors that the court deems relevant.
  • the ability to facilitate the child’s relationship with the other parent, and to appropriately communicate with the other parent.
  • the court will also take into consideration the parent’s moral character, emotional stability, and
  • the duration and depth of desire for custody and parent-time historically.
  • the next factor is the ability to provide personal care, rather than surrogate care.
  • the court will consider any significant impairment of ability to function as a parent through drug use, excessive drinking, or other causes, and
  • any times where they have relinquished custody or parent time in the past, if applicable.
  • the court may look at religious compatibility with the child,
  • the child’s interaction and relationship with the child’s stepparents, extended family members, or any other person who may significantly affect the child’s best interest.
  • financial responsibility,
  • and evidence of abuse of a child, of a subject child, or a spouse.

Once a custody evaluator has completed their data gathering and their psychological testing, rather than writing a written report, they will typically arrange to give their oral report to the parties, followed immediately by a settlement conference where the parties attempt to resolve their custody dispute. If the parties are unable to settle the case after hearing the custody evaluator’s oral findings, either party may elect to pay the evaluator to write their written report, which they can use at trial. The typical cost of a visitation evaluation is somewhere between $2,500 and $3,500. A typical cost for custody evaluation through the oral report is anywhere from $5,000 to $6,500. The cost of a written report on top of that is generally in the neighborhood of an additional $2,000.

How Much Weight Does The Expert’s Recommendations On The Final Custody Determination Carry In The Court’s Final Decision?

More often than not, the expert’s recommendations will weigh heavily into the court’s decision, but how heavily depends on the judge. Some judges defer greatly to evaluators. Some judges appreciate the information provided by the evaluators, but do not defer to the evaluator’s recommendations, instead trusting more their own experience in these kinds of cases. Often, in my experience, newer judges that have little experience in family law prior to being appointed a judge will defer to a custody or visitation evaluator more than a judge who had significant family law experience prior to taking the bench. Additionally, senior judges who have presided over many custody or visitation disputes are likely to give less deference to a custody or visitation evaluator, because they are more familiar with the subject and trust their own assessment of what is in the child’s best interest.

Can Either Side Oppose The Custody Evaluator’s Findings?

The custody evaluators findings can be opposed either at trial by effective cross-examination of an evaluator, and also by hiring a forensic psychologist to oppose an unfavorable custody or visitation evaluation. Effective cross-examination of an expert witness requires a high degree of experience and expertise in the attorney conducting the cross-examination. Kelly Peterson has that significant degree of experience in cross-examining and showing the weaknesses of an expert witness’s findings and conclusions.

Most custody evaluations or visitation evaluations are conducted by court appointed evaluators. The court has no desire for the children to be evaluated by several different aspects. When a forensic psychologist proposes an unfavorable custody or visitation evaluation, they are generally not allowed to do their own independent examinations of the children, interviews with the children, home visits, or observations of the parents with the children. Instead, they typically will review all of the data testing and interview notes of the evaluator they are challenging. They may also conduct their own interviews of the party that hired them, as well as interview other collateral witnesses and review other collateral data that the court-appointed evaluator failed to consider.

Typically, the challenging expert will then write a written report that does not include his or her own best interest determination. Instead, their report is an evaluation of how complete and accurate the court-appointed evaluator’s evaluation was. If the court-appointed evaluator missed an important consideration, failed to consider or give adequate weight to some data, gave too much weight to other data, or in any other way failed to properly apply the methodologies typical of the evaluation.

Allocation of Costs

As far as the cost of a custody evaluation, parental fitness evaluation, or visitation evaluation, the court-appointed custody evaluators, visitation evaluators, or parental fitness evaluators may be paid by one party, by both parties equally, or by both parties in a manner proportionate to their income. For example, if totaling both parties’ incomes, mother earns 60% of the income and father earns 40% of the income, often the court might require the mother to pay 60% of the evaluation cost. However, the parties can agree to any other division of the cost of these evaluations.

For more information on Custody Evaluations, scheduling an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children