Another top ten from the MSBA. This one is all about child custody evaluations. Each jurisdiction has a different process, and some jurisdictions have no process, only private custody evaluations. Some courts have court personnel conduct them. Some courts use social workers. Others use psychologists, and a few use psychiatrists.
You truly need to have a highly experienced divorce attorney who can walk you through the process. Those of us practicing 25 years or longer likely have dealt with virtually all of the custody evaluators out there, and we can prepare you fully.
Nevertheless, here are some general tips from the MSBA on preparing for a child custody evaluation:
  1. If allowed, attend the custody evaluation intake with your client. This will give you valuable information about how your client does “in action” to prepare him/her to present their “best” self in the evaluation and interview with the assigned evaluator.
  2. Explain the court evaluation process to your client in detail – timing, logistics, who contacts who. Even if explained during the intake process, it’s all martian to the client, especially if this is your client’s first ever trip to court.
  3. Make sure your client understands that the evaluation is not confidential. Nothing the client says (or you or anyone else for that matter) is “off the record”.
  4. Prepare your client before the client’s interview with the evaluator. Talk your client through the types of questions the evaluator is likely to ask (for example, strengths/weaknesses of each parent; concerns about the other’s parenting; what schedule/legal custody the client is asking for – and the client understands the implications of the different types of custody) and work with your client to keep the answers child-focused.
  5. Before the client’s interview, talk honestly with your client about his/her warts. Work with the client on how to acknowledge, frame, and explain to the evaluator what the warts are and what the client is doing/has done to address them. The court and evaluators are usually big on redemption, not on parents who try to “hide the pea” (which usually backfires).
  6. Prepare your client before the home observation. Your client should understand that this is an observation and the evaluator will not direct the visit. The client should have a plan for the structure of the visit (all the while making it appear completely organic) – a tour of the house (given by the client? the child(ren)?), an activity with the child(ren) (other than just watching TV or ignoring each other) that engages the parent and child(ren) together, balanced by the child’s routine to avoid feeling completely staged. A clean home helps.
  7. If your client is/has been under the care of a mental health professional, educate your client about his/her privilege, the effect of waiver, and have a plan about whether or not the client will sign a waiver for the evaluator (and so the rest of the world) to talk with the professional. If the client is not going to waive, help the client understand how the evaluator may draw a negative inference from this and work with the client on a thoughtful explanation about why the client is not waiving privilege. You should get a waiver so you can talk with your client’s therapist so you can fully advise your client. (Likewise, if your client has been involved in a CPS investigation, have a plan for whether your client will sign an authorization for the evaluator to review the file.)
  8. Work with the client on tone and how to keep the tone consistent with the client’s custody goals. For example, if your client wants joint legal and physical custody, avoid endlessly badmouthing the other parent. Be mindful when coming up with strengths and weaknesses for each parent about how balanced these should be and how these reflect upon your client’s custody goals. If the other parent has engaged in “bad acts”, help the client frame how these affect the child(ren)’s welfare (and not just the client’s, lest the client alienate the evaluator).
  9. Make sure your client can articulate a specific plan. Not every client has an ideal living arrangement or situation for the custody/access they seek. Your client can put him/herself in a better light by filling holes with a realistic, detailed plan supported by actual investigations.
  10. Get collateral witness names early, so you can vet collaterals before providing them to the evaluator.