A custody, parenting time and relocation evaluation may be requested and ordered by a domestic court where any of these contested matters are at hand: child physical custody (its initial determination or modification); legal custody, parenting time, and/or relocation. Such evaluations are a vital tool (of many) to consider in any given custody issue.
At Dixon & Moseley, P.C. we often find the place to start with a client we represent in such matters is with a fundamental explanation of terms. This ensures attorney and client are “singing from the same sheet of music.”
Thus, where you the reader face a similar legal issue, it may be prudent to discuss with your counsel the operational legal terms in considering a custody evaluation. In Indiana, the term “physical custody” refers to the parent with whom the child will spend the majority of overnights. This is often referred to as “physical custody” or the primary parent.
The parent who does not get physical custody is presumed to receive parenting time pursuant to the Indiana Parenting Time Guidelines adopted by the Indiana Supreme Court. Generally, this is one night during the week, one weekend every other week, alternating holidays and extended summer parenting.
Physical custody may be modified from one parent to the other if there has been a substantial change in his or her circumstances and it is in the child’s best interests. Generally, physical custody refers to where the child sleeps at night.
“Legal custody” is a term that is utilized to refer to which parent (or both jointly) will have the authority to make major decisions about the child’s health, education, welfare, or maintenance. Thus, legal custody has to do with major life decisions for the child.
Type of religion, if any, and schooling, public versus private are examples. This too may be modified to meet the child’s best interests.
Relocation has to do with the effect of one parent’s move on present custody. Even where a parent is not the primary physical custodian this may not be in a child’s best interests and the parenting arrangement may need to be modified by agreement or a trial court.
It is with these legal determinations that custody evaluations are often considered. A custody evaluation seems like it may be complicated. It is not. It is an aid to a trial court, the parties and the attorneys provided by a social worker, typically one trained at a master’s level, or clinical psychologist.
They interview the parties in a variety of orientations: individually, together, and with the children. In addition, a custody evaluator may provide psychological testing. Typically, this is the MMPI, which identifies personality and states. Personality states reflect a person’s current status, and they may change quickly. Personality traits are characterological and resistant to change.
Ultimately, the information and data the evaluator receives from the interviews and testing is more or less corroborated by a substantial amount of collateral data, such as police reports and school records. This is the Good of custody evaluation.
The reason for this is because any particular type of evidence, such as a police report may be difficult or impossible to admit at trial. For example, a police report may contain hearsay statements that require the police officer or a third party to be present in order to be admissible. This is an expensive and time consuming process.
That said, however, if a custody evaluator reasonably relies on this type of data and includes it the written report tendered with recommendations to the Court, the evidence becomes admitted. In addition, the Good of a custody evaluation is they frequently lead to creative and effective solutions to cases outside of a trial.
Trials are a hallmark of our Society. However, with domestic matters, the parties are often tethered by a child. Thus, the animosity created by this process may spill over into the domestic dynamic long after the case is closed and the lawyers are out of the picture (typically, they withdraw upon conclusion of the case in accordance with local rules).
Aside from their ability to transform evidence into an admissible format and bring resolution, most good things in life come with tradeoffs. Such is the case with custody evaluation. Because of their typical thoroughness, the Bad is sometimes a trial court often puts significant value on the report issued from the evaluator’s reports and recommendations.
For this reason, if the recommendations are unfavorable to the legal objective, they may be difficult or impossible to overcome. However, there are sometimes reasonable courses to challenge a custody evaluator’s recommendations.
These include looking at the entire underlying file of the custody evaluator. Ultimately, this is best analyzed by a second analysis or review by another custody evaluator.
The Ugly side to a custody evaluation, or any part of domestic litigation, is the reality that the un-said places divorcing parties have agreed not to go, well, is reached. The stakes are often who gets physical custody or is able to relocate, with a child.
These include drug use, tax evasion, and sexual escapades. The last place the lawyer wants to help his or her client prepare for this is post-custody evaluation intake with the evaluator.
By this time, the damage in the failure to disclose is done. Not that any of these issues are directly related to custody, but the harm is to credibility. This begs the question for any evaluator, what else is not accurate?
Ultimately, assuming the legal terms are understood, and coupled with reasonable expectations, a custody evaluation is a powerful tool to consider in any litigation. They are Good in that they can facilitate settlement of cases outside court.
They are Bad in that a complete custody evaluation is difficult to later challenge in litigation. In fact, they may be effectively legally dispositive.
The Ugly is that deep dark secrets, often which have no relevancy, are played by a parent in this high-stakes litigation. On the other side, this illicit use of information may be deemed a clever tactic, backfires and overshadows the true story of the parent who plays these cards.
Is a custody evaluation a proper legal consideration in your case? At Dixon & Moseley, P.C., we always consider accepting clients with objectives and legal matters within our practice area. Perhaps our approach is one you might consider.
