THE CHILD CUSTODY EVALUATION: Challenging An Unfavorable Report

Upon the conclusion of a court-ordered child custody evaluation, the evaluator (guardian ad litem) issued a report and you promptly read it.  The report was seventy-five pages in length and detailed your family history, your contentions, your spouse’s contentions, your children’s statements and the statements of various third parties who know the children and have seen you interact with them, including your housekeeper, the children’s babysitters, school teachers, pediatrician and your friends.  You and your spouse each underwent psychological testing and those results were set forth as well. 

As you read the report, it appeared that the evaluation had gone well.  The factual information was accurate, your friends supported your point of view and the third parties who had regular contact with you and the children had little to say that was negative.  Yet the evaluator reached various conclusions that were at odds with your perspective and, ultimately, rejected your proposed custody and visitation plan in favor of that of your spouse. 

What now?

If there is a legitimate basis to do so, it is critical to challenge an unfavorable custody evaluation because the court often relies heavily on the conclusions of the evaluator in making a final custody order.  To that end, the evaluator’s files/notes may be subpoenaed and reviewed; the third party witnesses interviewed; the evaluator deposed; an expert hired to review and/or testify about the deficiencies in the report; and the evaluator cross-examined in court.

To begin, the report needs to be read critically with respect to the procedures utilized in conducting the evaluation.  Was each party interviewed?  Were they interviewed in the same settings (home v. the evaluator’s office)?  Were the parties interviewed for approximately the same length of time?  How long were the interviews?  Was the length of the interviews commensurate with the complexity of the issues or history presented?  What questions were asked of each party and were they both asked to cover the same topics?  Was each party accorded a second interview?  In that second interview, did both parties have to respond to the allegations of the other?  Does the report detail the allegations of both parties or only those of one party and, similarly, are the responses of each party set forth or only those of one party?

Were the children interviewed separately and then together?  Were they interviewed on different occasions? Were they interviewed in only one parent’s home or in both parents’ homes (or just in the evaluator’s office)?  Which parent brought the children to the interview location (and presumably waited for them there)? What do the evaluator’s notes say about the children’s interviews and was all that information set forth in the report?  Is the excluded information, if any, relevant? For each child, can the parent add a new perspective to the child’s demeanor or comments as recorded by the evaluator based on then-existing circumstances, the child’s personality, the location where the interview took place, or any other factors?

Are there detailed notes of the evaluator’s interviews with the third party witnesses?  Is there a discrepancy between that which the witnesses tell you they said to the evaluator and that which the evaluator recorded?  Can the witnesses explain any potentially damaging comments that the evaluator said they made?  If so, you may want to subpoena those witnesses to testify at trial.

Did the evaluator ask both parties to submit names of potential witnesses and did both parties comply with the request?  Did the evaluator interview all of those identified witnesses and, if not, was contact attempted?  Did either or both parties send the evaluator an opening letter setting forth their respective perspectives on the background of the dispute?  What was the content of the opposing party’s letter and does there appear to be an interrelationship between the information in that letter and the evaluator’s conclusions?

Does the report comply with the requirements set forth in the Probate and Family Court’s Standing Orders regarding custody evaluations?

What is the evaluator’s background and experience conducting custody evaluations?  Did the evaluator also conduct the psychological evaluation and, if so, is he/she qualified to do so?  What are the pros and cons of having an independent, qualified individual conduct the psychological testing?  Which test was used?  What are the pros and cons of using the test that was chosen for the purpose of evaluating the litigants in the context of a custody evaluation?  What do the testing results mean?  What interpretation might be given to the results in light of this family’s unique circumstances and/or the stress of the ongoing litigation?  Do the evaluator’s conclusions take into account the test results or make sense in light of the test results?

Do the facts support the evaluator’s conclusions?  If not, how are the facts at odds with the conclusions?  If there are additional facts which the evaluator did not consider, or have an opportunity to consider, would those facts change the evaluator’s conclusions?  If not, why not?  If so, prove-up those facts at trial. 

Does the evaluator specifically identify any negative impact that the current visitation schedule is having on the children or articulate clearly how a different time-share arrangement would likely be beneficial? 

The foregoing are just some of the many issues that may be considered and questions that may be posed in challenging a report.  Most importantly, a litigant should not shrink from challenging an evaluator whose report or analysis is faulty.  Unless you challenge the evaluator - assuming that there is a legitimate, substantive basis to do so - the court will never know the problems with or deficiencies in the report and may rightfully assume that there are no problems or deficiencies.  Thus, the burden is on the litigant to prove, argue and persuade. 

This post is provided for general informational purposes only and does not constitute legal advice or the creation of an attorney-client relationship.