Hot Tips When Involved in a Custody Evaluation
Feb 14, 2023 | Written by: | Share
In some cases where custody and parenting time are not resolved by settlement, either party or the court may engage or appoint a custody evaluator to perform a best interests evaluation of the child(ren). This evaluation is often very time-consuming (6-18 months) and expensive ($5,000-$25,000, not including depositions, trial, etc.).
For purposes of this blog, I am going to ignore whether this is a worthwhile endeavor, except to say that an argument over which parent should have Tuesday night dinner with the children may not be worth the time, emotional damage, and costs that an evaluation may demand. That being said, it is equally impossible to place a price on our children. For the limited purpose of identifying hot tips to help you prepare for this process, assume that the evaluation is necessary and worthwhile. That in and of itself is a concept that a litigant should discuss with his/her attorney in advance. Such evaluations should not be entered into lightly.
1. Is the expert partisan?
Is the expert “your” expert, meaning that you and your attorney hired him or her? Or is the expert your adversary’s expert? Or was the expert jointly appointed or court-appointed? Understanding the nature of the appointment is critically important and necessary before you engage. Although the expert’s conclusion should only be about the best interests of the children, the manner in which his/her role was secured is absolutely relevant.
2. Is the expert familiar to your attorney?
Has your attorney worked with this expert before, and what were his/her experiences? If your attorney is unfamiliar with the expert appointed or chosen, can your attorney reach out to a colleague for references and some information?
3. How does the expert collect information?
Will the expert take information from the parties? From counsel? In what format and when?
4. Prepare for your evaluation!
This does not necessarily mean to rehearse or be coached, but it also does not mean you should go to the evaluation without being prepared and discussing the process with your attorney. How do you present yourself? What are your goals? Are your expectations reasonable?
5. Expect it to take a while.
It is not uncommon for the expert to need to meet with each parent several times, perform home visits, and speak with collaterals (teachers, pediatricians, etc.). It is tiresome and can be grueling. Some evaluations take as little as 90-120 days and others upwards of a year. That may not include the written report, either. Importantly, as time passes, circumstances may change so it is imperative to bring the expert up-to-speed accordingly. If you have to wait years for a trial, what good is a stale report?
6. Remember…it is a recommendation, not a binding determination.
At the end of the day, the report is not in evidence (its own set of rules) and is not necessarily binding. A court cannot simply adopt the report without the time and expense of a trial (unless everyone agrees otherwise). Instead, the expert can only make recommendations that are hopefully reasonable, appropriate, and supported by facts, law, and science. If not, do you hire a partisan or rebuttal expert? Will the court allow you more time to do so? Is it salient to do so?
You must discuss these considerations, all of which are very fact-sensitive and unique to your case, with your attorney before you undertake this process. The consequences to you and your family are too significant not to take the appointment of an expert very seriously.
If this article interests you, you may also want to read Five Mistakes Commonly Made by Parents in Custody and Divorce Cases.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.