The Use and Abuse of Custody and Parenting Time Evaluations

By Jaye Wickham Taylor

Where our children are concerned, it is often very difficult to reach a compromise about their care and upbringing, even in the best of marriages. Coming to an agreement about child rearing is much more difficult when the other parent is the opposing party in a hostile divorce! Typically very little trust remains between parents who are quick to recognize the worst qualities in each other. Adding to the problem is the natural tendency of even very young children to pit each parent against the other in order to gain favor or attention, or to soothe an obviously broken-hearted mom or dad. Sometimes there are allegations of violence, serious mental health problems, and substance abuse – which are bitterly disputed. When parents cannot compromise for whatever reason, one option is to jointly hire an expert to investigate the family dynamics and make a custody and/or parenting time recommendation to the parties and, if needed, to the judge.

A custody evaluator is typically an experienced family counselor with a PhD in psychology, a Master’s in Social Work or some similar family-related academic credential, plus training and experience as a witness in the courtroom. An evaluator is appointed by the court, hopefully having been jointly nominated by both parents. He or she will interview the parents, meet and observe the children with each parent, read communications from, and sometimes interview, friends and family members, and if appropriate, actually visit the family home(s). If warranted, the evaluator will administer or cause to be administered (to parents and even children), standardized tests designed to uncover personality trends and potential disorders.   In the Portland metropolitan area, licensed clinical psychologists generally require an advance retainer of $2500 to $6000, and their total fees tend to range between $3500 and $8000. Often the parties agree in advance to split the costs. There can be a waiting period of 2 weeks to 4 months before the process even begins, and the evaluation can take months to complete. In the end a written report is distributed, or a meeting is arranged, in which the parties and their attorneys learn of the evaluator’s final recommendations.

Not every case requires the time and expense of a custody evaluation. Lawyers may be tempted to use evaluators when they don’t want to have to tell their clients the truth about their chances of prevailing…or don’t want to talk about these more emotional aspects of divorce. An evaluator can end up simply a very expensive investigator, and in fact he/she is sometimes a poor substitute for a judge when actual recommendations and opinions are offered on the witness stand. Evaluator recommendations can be unimaginative with legal positions overly rooted in their personal experiences. Good divorce lawyers know how to “package” their client, thus managing to control the outcome much as they would have controlled the trial.

There are times when a custody or parenting time evaluation is clearly the best approach to resolving family disputes.  Evaluators have access to otherwise protected medical and psychological records, and they can quote hearsay statements of the children at trial. Thus an evaluator can help present otherwise inadmissible evidence to the judge, without the necessity of bringing children into court. Likewise, where there are serious allegations of mental health disorders in one or both parents, a licensed clinical psychologist may administer psychological testing that could uncover important evidence about ones’ ability to parent. Similarly, when the children have been subjected to suggestive interview techniques and alienation tactics, or if they are too young or too aligned with one parent, a custody evaluator can be a good way to diffuse their stress. The best evaluators can be effective problem-solvers for parents in strife. That is, they help the parents accept the reality of divorce and move on, with a feeling that someone has at least listened to their concerns. We know from research that children do better once the litigation is behind them, mostly because their parents have stopped arguing. If the evaluation process results in settlement and acceptance, it is well worth the price and the time commitment.

In families with no serious mental health or substance abuse issues, either parent can probably do a fairly good job as primary custodian… and the children just need resolution. In some cases the only real difference between mom and dad is one of parenting style, yet parents find themselves engaged in a tug-o-war that feels more desperate than it need be. One parent may be more focused on healthy eating habits, for example, while the other places tremendous value on academic success. In the end, regardless of who “has custody”, both parents should have ample contact with the children and plenty of opportunities to influence them in positive ways. To end a “tug-o-war” over legal custody of children, it only takes one very self-assured parent to let go, save a lot of stress and attorney fees, and allow both households to get past the power struggle and on with their new lives.