Do experts help in divorce cases? Specifically custody evaluators?

Do experts help in divorce cases? Specifically custody evaluators?

That depends on how you define “help,” and if you define “help” as “dramatically improve your chances of success,” then generally speaking the answer is no, they don’t help. Why?

Two reasons.

First (and this is something even lawyers have a hard time wrapping their heads around), judges are not bound by an expert’s opinions. Even if the expert witness clearly has an authoritative command of the facts and the science, he/she is still merely a witness, and the judge does not have to take what any witness says as indisputable fact. The judge gets to determine the weight a witness’ testimony will get.

Second, judges in divorce cases frequently do not give expert witness testimony so much weight as to accept their testimonies in whole or even in part. And if judges do accept a part of an expert’s testimony, they may adopt that part of the expert’s testimony (to the exclusion of the other parts and context of the rest of the expert’s testimony) that supports a conclusion that differs from the evaluator’s.

I still use expert witnesses, but because of what I stated above, I used expert witnesses more in the past than I do now.

And one of the most useless expert witnesses for the money is . . .

The custody evaluator. It’s not necessarily the custody evaluator’s fault.

Custody evaluations cost at least $2,000, but usually cost around three to five times that amount by the time you factor in the evaluation, the evaluator’s written report or deposition, and the evaluator’s time in court.

Of all the custody evaluators I have utilized in my career, the court has yet to adopt the evaluator’s recommendations in their entirety. Let that sink in.

I often wonder if the evaluator (regardless of whether the evaluator did a great job or a mediocre job) was worth the expense. Part of me says, “Imagine how much worse the custody award might have been for your client if you didn’t have the expert witness,” but another part of me says, “Your client paid about $10,000 for that custody evaluation and ended up with what he/she likely would have gotten anyway.”

Given the boost they can give client’s custody case, custody evaluations are usually way too expensive. If a custody evaluation cost around $5,000 (give or take a thousand dollars or so), including a couple of hours on the witness stand at trial, I would consider a custody evaluation a better risk, a better investment. Good luck finding a competent custody evaluator who would agree to cap his/her fee at $5,000 or so.

Custody evaluations are even more grossly and needlessly expensive when you consider that:

  1. A) the custody evaluator does not record the interviews with the parents, children, and parents and children together, so there’s no way to know whether what the custody evaluator claims occurred in the interviews actually occurred. Can you imagine a judgment based upon no record of the trial being made, but instead upon the judge ruling solely on the strength of his/her memory of who said and did what at trial?
  2. B) the Utah Code (30-3-10(1)(e)) provides for the judge to interview the children directly and free of charge. But judges avoid child interviews like the plague; they’ll tell you the reason(s) is/are 1) they don’t feel qualified to interview children and/or 2) children are not credible witnesses on the subject of which parent they want to reside with or should reside with. Nonsense. Here’s why: 1) if a judge does not feel qualified to do as the Utah Code authorizes him/her to do, then the judge is not qualified to be a judge and should resign or get qualified. And getting qualified is a matter of a few hours’ training on child interview techniques—hardly an undue burden to place on a judge. 2) While it is true that children can be coached and emotionally manipulated, especially on the subject of child custody, to suggest that all children in all situations are not credible witnesses on this subject is to throw the baby out with the bathwater. Besides, the only way to know whether a particular child is or is not credible is to interview him, like it or not.

Utah Family Law, LC | | 801-466-9277

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