Courts routinely order custody evaluations in cases so a person trained with what is key in a child’s psycho-social development can investigate the case and speak with the children and make a custody recommendation to the court of what is in the child’s best interest. Some judges place great value on a custody evaluation and others do not. Nevertheless, if you receive an unfavorable custody evaluation, it is not necessarily the end of your case. These three sound approaches to address an unfavorable custody evaluation depending on your case.
When it is apparent the evaluator did not consider (or have available to them) certain significant information, it is often necessary to conduct discovery1 on the custody evaluator to find out what documents and other materials they obtained and relied upon to prepare to make recommendations to the court in his/her report. If key materials are omitted, then this can be used by your counsel on cross-exam of the evaluator to establish the missing material and corresponding flaws in the evaluator’s work. Then, coupled with your own testimony or exhibits, you can present an accurate picture to the court of the real controlling custody dynamics and why the report’s conclusions as to legal or physical custody and parenting time are inaccurate—and what they should be based on the evidence presented.
Another very effective way to address an inaccurate custody evaluation is to retain your own expert to analyze the custody evaluation. In this case, normally you obtain the errant experts underlying file and report and have your expert work through it and testify to its shortfalls and what the evidence really supports, if anything, as it relates to custody and parenting time. Alternatively, this expert may direct that without certain information, there is no viable way to support the expert’s conclusions and the report should be considered of little weight. For this to be most effective, your expert should have more education, training, and experience than the original evaluator in order to be perceived as credible by the trial court.
Finally, and perhaps the best way to take on an adverse custody evaluation is to have a forensic child psychologist perform another custody evaluation and cover the missing materials, testing or considerations and issue a dueling report. Not all courts will entertain a second evaluation because it puts the children back through the evaluation process, but on the other hand, this is not all that uncommon either. The key is to make a compelling motion to the court as to why a second evaluation is necessary for the children’s best interests.
While a negative custody evaluation is not the best situation to be in, it certainly is not the end of your case if you carefully consider how to address it. This is the work of a skilled family law advocate. This blog is written by attorneys at Dixon & Moseley, P.C. who handle domestic cases of all types, as well as appeals, throughout the state. This material is written for general educational purposes and is not intended as legal advice or material that should be relied upon in any given case. This blog is not a solicitation for services. It is an advertisement.
- The investigator must provide his or her file of underlying data and reports, complete texts of diagnostic reports made the investigator and the names and addresses of all persons whom the investigator consulted. Ind. Code 31-17-2-12(c).
