Many divorcing parents are able to resolve questions about how they’ll share coparenting responsibilities and time with their children without going to court—sometimes the resolution comes during a court-ordered mediation just before the trial, but it does usually happen. However, some cases do end up in court, where a judge will decide which parent gets custody and how and when the other parent will spend time with the kids.
In general, your children won’t be too much involved in the court process. You’ll go to hearings that involve child custody and support without the kids even knowing that you’re doing it—if their schedule is changed, they’ll just find that out later. But don’t fool yourself that you can be involved in a serious custody fight and still protect your children from paying the price.
If you aren’t able to work out a custody agreement with your spouse after trying mediation and trying out a temporary arrangement, the court will probably order a custody evaluation. The evaluation itself is a document that an evaluator prepares for the judge to review, giving the evaluator’s opinion about the best custody and visitation arrangement for your family.
A custody evaluation is done if:
- the judge orders it, or
- you and your spouse agree to it.
A custody evaluator is a mental health professional, usually a psychologist, with special training and experience in reviewing family situations and making recommendations to judges about what custody
arrangements and parenting plan or schedule would be in the best interests of the children involved. Sometimes the court appoints a “guardian ad litem”—a lawyer who represents the children’s interests— instead of a custody evaluator, but the process is very much the same either way.
The evaluator’s recommendation is not binding on the court, but as a rule, judges give it a lot of weight—it’s the only neutral information they have about your family situation and dynamics.
Choosing the Evaluator
The judge might assign a custody evaluator to your case. Or the court might give you a choice of two or three people and let you either choose among them or reject one of the choices. You and your spouse may be able to agree on an evaluator recommended by one of your lawyers. If you do, the judge will probably go along with your choice. If you’re choosing an evaluator yourselves, or if you’re choosing from among options given to you by the judge, ask your lawyer to get some information so you’re comfortable with the choice—even if your lawyer has recommended the evaluator. (Don’t question the evaluator directly, as you don’t want to do anything that might negatively affect the evaluator’s impression of you.) You want to know about the evaluator’s experience generally, and if your family has special issues (for example, a child with special needs or one parent who wants to move away with the kids), about whether the evaluator has dealt with similar issues before.
It’s also appropriate to ask whether the evaluator has a history of recommending in favor of either fathers or mothers. It’s unlikely, but if none of the options offered by the court are acceptable to you after you do your research, you can ask the court to give you more options. But don’t assume your request will be granted.
If you and your spouse agree to an evaluation but you can’t agree on the evaluator, you can hire competing evaluators. After you’ve read what the custody evaluation involves, however, you may be less inclined to do that.
The Evaluation Process
For example, consider the cost. How much the evaluation costs will depend on whether it’s court ordered or voluntary. If the court orders the evaluation and you use the county’s evaluator, you’ll pay a much lower hourly rate than if you hire a private evaluator. A county custody evaluation will probably cost between $1,000 and $2,500, and you could pay $10,000 or more for a private evaluation.
To some extent, how the evaluation goes will depend on the specific evaluator. But almost all evaluators:
- interview both you and your spouse up to three times (interviews will be planned, not unannounced visits)
- interview each child once or twice
- spend time with each child with each parent, to observe your interactions (at the evaluator’s office, your home, or both)
- gather information from teachers or caregivers, doctors, therapists, and other witnesses, and
- look over your court file.
Many evaluators use psychological testing as well—for both children and parents. Some do the testing themselves and some (including a guardian ad litem who’s a lawyer, not a mental health professional) send you to another professional for testing.
If anything happens in the evaluation that concerns you—for example, the evaluator appears to have a strong bias in favor of your spouse or asks questions you think are inappropriate—talk to your lawyer immediately, before the report is submitted. Concerns raised after the report is completed will be discounted if the recommendation goes against you.
There are some important Do’s and Don’ts for the evaluation—make sure you consider them.
The evaluator will submit the report to you, your spouse, and the court at the same time. Depending on the parameters given at the outset, the evaluation might make recommendations about:
- custody, visitation, and time-sharing
- whether therapy is appropriate for the family together or for any individuals or subsets of the family
- how you and your spouse should deal with conflicts in the future, and
- how to deal with specific issues like substance abuse.
The report might recommend a reevaluation for a specific time in the future, especially if your children are very young.
After you get the recommendation, sit down with your lawyer and discuss it. If it’s at all acceptable to you, you’re probably better off agreeing to the recommended course of action and giving up your day in court, where you might end up getting less. Of course, if your spouse doesn’t agree as well, you’ll have to go to court anyway. But take the opportunity to try to get things resolved without an ugly courtroom fight—and maybe even to learn something about parenting during and after your divorce.
Adapted from Nolo’s Essential Guide to Divorce, by Emily Doskow.