1. Divorce - Contested vs. Un-Contested.         2. Child Custody.       3. Child Support.    4. Spousal Support.      5. Restraining Orders.    6. Challenging Restraining Orders (TRO).     7. Attorney Fees (who will pay) 8. Contempt Actions - Enforcing a court order.    9. Paternity Action.    10. Child Support Enforcement .  (DCSS and the District Attorney office)   11. Loss of Driver's License.   12.  Custody Evaluation .   12. Wage Assignment orders    13.  General common legal terms.   14. Legal terms used in a divorce proceeding.

CUSTODY EVALUATIONS –  WHY?  WHAT  TO EXPECT

WHY  IS  AN  EVALUATION  NEEDED?

Evaluations are utilized when the parties cannot reach an agreement regarding who will be the custodial parent.  This is a fairly routine procedure for many family lawyers, judges, and mental health professionals, but not  for the parents who are facing one for the first time.  The following information is intended to acquaint you with what a custody evaluation is, the purposes it serves, and how to approach with insight and preparation.

  Most evaluators are usually ordered by the court to perform an evaluation of the parents and other people who may be in direct contact with the children.   Because the parents  are pointing fingers at each other with accusations of either of them being unfit, neglectful, abusive and even violent,  the court needs an evaluation to determine the actual facts of the situation in the best interest of the child or children.  The parents may even request the court to order an evaluation.

 Why is an evaluation needed?

   In order to determine where the child(ren) is going to live,  you and the other parent have been asked to participate in an independent psychological evaluation, because either the judge, Family Court Services or both attorneys determined that  it would be best for the children.   Some court orders are very specific, ordering  detailed instructions to the evaluator and to the parties about who will be evaluated, for what purpose, using specific kinds of information,  and also who will pay for the evaluation.   But most of the time,  the order is vague and generally gives the evaluator the ability to look into whatever he or she deems necessary to base a recommendation to the court.

    Once an evaluation has been ordered, your first order of business should be to discuss it with your attorney.   You will want to go over the details of the order and what fees are required to be paid.  If your attorney has knowledge of the evaluator assigned based on other evaluations,  he or she may be able to offer you more insight into that particular evaluator's background and procedures.

 The evaluation is called "independent" because the court-appointed psychologist (or other mental health professional) is not working for one parent or the other.   That does not mean some evaluators may not be so independent.  That is why both attorneys usually have an opportunity to agree on selecting one.   If they can’t, then the court assigns one.

  This person is the court's expert, charged with the responsibility for advising the court about your children's psychological and emotional needs, the resources offered by each parent to meet them, and how a custody or parenting timesharing  arrangement might best be devised to meet those needs.    But always remember when you are fighting for custody,  it is not about your best interests, it is about your child(ren)s.   However,  you should always keep in mind that NOT having primary custody does not mean that you can’t have a substantial amount of time with the children

 The best evaluators are not primarily interested in a detailed public inspection of all of your personal strengths and weaknesses or deciding "which side is right or wrong" in all of your marital and post-marital conflicts.  Most of the time a person having an affair is not a reason to deny custody to that parent in California.   Their main concern is to figure out how to establish the best  parenting plan for the children based on all of the facts.   The evaluator will look at all of the issues including the children at this point in their development and the various proposed custodial environments and arrangements have to offer the children

  One thing to point out  is that most courts and evaluators give the benefit of the doubt to the primary custodial parent during the marriage.  That does not mean all is loss to the non-custodial parent.   You  must make sure that you express to the evaluator that you can offer just as much to the child(ren), if not more, and still not alienate the other parent from the children. 

Can't I just have the judge decide at a trial?

 Many times, the answer is "yes".   However,  the recommendation of  the Family Court Services counselor is based on a limited time spent with you and perhaps your children if they are of age,  therefore the court has limited resources also.   This is when a custody evaluation plays an important part of your legal process.   Custody evaluations are used in a "move-away" case to determine if the child should stay with the parent, or if that child should be allowed to move with the moving parent. The legal issues involved in a "move-away" request become quite complex.  Thus,  a more thorough process such as the evaluation,  is warranted because more information and facts are needed regarding the household,  schools,  other parties involvement with the child(ren), etc.

 Also in vast majority of disputed custody cases,  the case never goes to trial after the report is released.  Over turning the recommendation from a custody evaluation is very difficult.  Although trials are perhaps the best means in  separating truths from lies and fact from fiction,  they are unwieldy instruments for getting at detailed understandings of complicated patterns how the children will react living with each parent.  Also when others are involved, how the child(ren) might react with a new boyfriend or girlfriend and the emotional interaction they will be facing.  Both the court and the attorneys know this and generally try to see to it that the most of their cases are resolved through a negotiated settlement or at a settlement conference.  A good settlement conference judge will put the needs of the children first, and determines what will best serve the children's needs.  This often requires  the assistance of an experienced, impartial professional evaluator.

 Aren't these custody reports really just subjective opinions of another person?

 Here is my lawyer "talk".   Yes!!! and No!!!    Deciding the best thing to do in a complicated interpersonal conflict is always a matter of opinion so the answer is  "YES", so it does involves substantial subjective elements.    In an evaluation,  testing may be utilized such as  MMPI’s and other clinical tests given to both parent and others who may be involved.     Even in court,  the decisions of judges are subjective.

 Now here is the other important part,  and it is not so subjective.  People sometimes can come across with lies so bad that  the evaluator may even lack objectivity.

Can the evaluator tell who is telling the truth?

 There is no simple or single way to measure whether or not a person is telling the truth nor if they have good parenting skills, or fully determine the child(ren)’s needs and a particular parent's strengths and weaknesses.   Decisions as complex as these can  never be determined by one simple test.   Perhaps when the tests are given,  the weight of the results in the evaluation are within  the expert's opinion on who has the child's best interest and well-being.   This is no doubt for many, that the result of a professional custody evaluation, depends significantly on the experience, insight, and skill of the evaluator, as well as the various methods used to reduce his or her bias. A good custody evaluation uses multiple types and methods of information gathering that usually includes personal interviews; developmental histories; parent-child observations; MMPI’s; psychological testing of the parents, children; review of school records, medical and psychiatric records and history of both parties, legal documents which can be substantial in many cases.  The information should also include CPS Protective Services records,  criminal histories and domestic violence of the parties.   Information gathering can also include reviewing pictures,  personal journals;  home videos and writings between the parents or others.

It is very common for some to include interviews with neighbors, actual or prospective stepparents, teachers, babysitters, and even grandparents.  I feel that some of the best evaluations include home visits.  A good evaluator will NOT place too much weight on any single source of information.  He or she will look at the totality of all of the information before making a recommendation.

   In the end, even after the report is written it is still up to the judge to decide whether the evaluator's opinions are of sufficient value and weight to be considered when the court makes it recommendation.   In most cases,  the court does use this important tool.

Can I prepare for a custody evaluation?

    Overall, yes, you can.  First, you need to prepare yourself mentally and emotionally.   You need to remain focused on your goal.  Don’t overly express anger or sadness.   Clothes may also make a difference to your appearance as well as cleanliness.   Remember, the person you are talking to is a stranger and will be asking you a lot of very personal questions which may include your past history, including drug use, abuse, and sexual history.   The evaluator will be interested not only in what you have to say, but how you present yourself as you say it.   So remember to listen to what is being asked and respond briefly and in a positive way.   Rather than spending time trying to explain all of your anxieties, hostilities, and jealousies you might be experiencing,  your specific response without dramatization to the specific question will benefit you in the long run.  So listening to the question or topic of what the evaluator wants is very important.  

In mentally preparing yourself, remember what your goal is - primary custody of your children and what you believe are in the children's best interest.  You should have clear information about matters such as your own personal history, the history of your marriage, the history of your children and of course, the reasons why you want custody.  

     You need to know how your children are doing in school and what kinds of  friends they have.  Knowing this certainly indicates that you have actively participated with them.   You may also be asked to describe your parenting skills,  what your child(ren)s  weaknesses are and how you handle them.   When the pressure is on,  you should be able to confidently respond and come across as believable and sincere.   When asked about specific evidence supporting any concerns you have about the other party, you must not guess and just accuse, you must be knowledgeable about it.  Don’t rely on your attorney to give you a script.  Remember, your attorney is not the one asking for custody, you are.  You need to be able to explain why you believe you are the best parent to have custody.  

EVALUATIONS  ARE   VERY  IMPORTANT    

    If an evaluation is conducted,  based on the recommendation, most of the time you don’t get a second bite of the apple.  Remember, a custody evaluation is not just a preliminary step before trial.  Unless there is a drug or alcohol problem with the other parent,  the evaluation is probably your best chance to have your thoughts and feelings revealed and listened to completely.   As for guaranteeing any outcome or results.  Most of time, it is impossible to tell.   Even if you don’t get custody,  try your best to use the evaluation as a meaningful opportunity for learning about yourself and how you can improve on being a better parent.  By doing so,  when there are changes of circumstances,  your changes for a change of custody could definitely change in your favor.  

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