Minnesota statutes
provide that: “In contested custody proceedings . . . the court may
order an investigation and report concerning custodial arrangements for
the child.” This is referred to as a “custody evaluation.” [1]
Although not mandatory, it is almost always ordered in contested custody
cases, with rare exception, although in some counties or situations
this task may be essentially assigned to a Guardian ad Litem rather than
a custody evaluator (which is not advisable).
The
cost of a custody evaluation can range from the hundreds to several
thousands of dollars, depending on the county and whether the parties
are using a Court Services evaluator or a private evaluator, in if so,
who.
Custody evaluations usually take about four months to
complete, give or take. A good custody evaluation will generally
include the following:
- at least one both usually two or three interviews with each parent, separately, totaling at least two or three hours for each parent.
- at least one but usually two or three interviews of the children without the parents being present, totaling at least two or three hours.
- in person or telephone consultation with the children’s day care provider, teacher, and any other adults having a close relationship with the children.
- for younger children, a observation of interaction between the children and each parent in each parent’s separate home.
- criminal background check of each parent
- obtaining the mental health records of each parent, including alcohol and drug dependency treatment records.
- ordering a psychological evaluation of the parents, ideally in every case, but at least in every case where credible allegations of mental illness are raised.
- ordering an alcohol and/or chemical abuse assessment where legitimate issues of alcohol or drug abuse are raised.
- records of the children’s school performance.
- all other information relevant to determining the best interests of the children with respect to custody.
Upon
completion of the Custody Evaluator’s investigation, the Evaluator
completes a report which addresses all of the “best interest” factors
set forth in section 518.17, with detailed analyses, followed by the
Evaluator’s custody and parenting time recommendations. [2]
Although
the Custody Evaluator’s recommendations are not binding, they weigh
heavily in the Court’s determination of custody. Apart from some minor
tweaking, the Court will almost always follow the Custody Evaluator’s
recommendations as to custody and parenting time. For this reason, most
cases which have not settled before this point will reach settlement
when the Custody Evaluation report is received. For those who wish to
contest a custody evaluator’s recommendations, it is advisable to obtain
a rebuttal evaluation if feasible, or at least to be prepared to bring
plenty of witnesses and exhibits to trial to show the Court what it was
that the evaluator failed to consider or to properly analyze.
Tips for dealing with a Custody Evaluator:
1.
Do NOT take a combative attitude. The last thing you want is for the
evaluator to have the impression that you are unreasonable. Don’t
assume that because the evaluator is asking you for your response to a
concern raised by your spouse, that the evaluator therefore must be
agreeing with your spouse’s position. Usually they’re just asking you
to get your side of the story.
2.
Do NOT question the evaluator’s competence. (At least not until after
the evaluation report is completed). Evaluators are professionals who
do not appreciate having their integrity or competence called into
question. Evaluators hold a lot of power. You want the evaluator to be
your friend, not your enemy. Therefore, your dealings with the
evaluator should be respectful.
3.
When raising concerns about the other party’s parenting deficiencies,
do so in a non-angry way. You don’t ever want to appear angry, even if
anger is justified because of how your spouse is treating the children.
You don’t want to appear as though you’re motivated by spite or anger —
only that you are concerned for your children. So for example, instead
of saying “My spouse is a hot-tempered bitch/s.o.b. who terrorizes the
children and everyone under the roof of our house,” say instead: “I
really feel bad having to discuss negative issues about my spouse,
because s/he has some very good qualities too, but my fear is that if I
don’t explain some of these things to you, you won’t have any other way
of understanding the situation and making recommendations that take into
account everything that is impacting the children. So with that
preface, I do need to discuss my spouse’s anger issues, and how that has
affected the children. . .”
Lastly, it is vitally important for
your attorney to strategize with you about the information you need to
make sure the evaluator takes into account in his or her investigation
and report. This should include a discussion of what witnesses and
documentary evidence needs to be provided, as well as what the main
points are in your favor. I'm always amazed at how many attorneys seem
to take a completely hands-off approach to these evaluations, which are
so critical to the success of your case.
Footnotes:
- Minnesota Statute section 518.167, Subdivision 1.
- Minnesota Statute section 518.167, Subdivision 1.
