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How do courts insist upon custody evaluations being conducted?

With rare exception in Utah (so rare that it might as well be non-existent), the way courts insist upon custody evaluations being conducted consists of:

  • the court imposing one and only one child custody and parent-time schedule during the pendente lite*/discovery phase** of the case (a period of no less than 180 days, mind you), never to be deviated from the entire time; and
  • the court ordering the custody evaluator:
    • to compare the actually implemented, so-called[1] “temporary” child custody and parent-time schedule against the other parent’s proposed schedule without ever having the other parent’s proposed schedule implemented too (if ever there were an example of an apples to oranges comparison, this is it); and then
    • make a recommendation as to what custody and parent-time schedule “is in the child’s best interest”.

Why? Concisely stated:

  • There is nothing in UCJA rule 4-903 that requires a custody evaluation consist of nothing but educated guesses.
  • Otherwise stated, rule 4-903 does not require that one and only one temporary custody and parent time schedule be imposed upon parents and children throughout the duration of the pendente lite*/discovery phase** of a pending child custody dispute.
  • Indeed, it is hard to imagine:

o   a worse, less probative way to conduct a custody evaluation than to require that one and only one temporary custody and parent time schedule be imposed throughout the duration of a custody evaluation; and

o   a better, more probative way to conduct a custody evaluation than to implement and compare and analyze the parents’ respective competing child custody and parent time schedule proposals what ultimate custody and parent time schedule best serves the best interest of the child.

  • Implementing, during the pendente lite/discovery phase of the case could, in many (likely most) cases eliminate any need for a custody evaluation, but even in cases where a custody evaluation is deemed necessary, the custody evaluator, parents, and child would only benefit from comparing and analyzing the parents’ respective child custody and parent time schedule proposals in real time for the purpose of obtaining actual, verifiable proof as to what ultimate custody and parent time schedule best serves the best interest of the child.
  • Implementing, testing, comparing, and analyzing the parents’ respective competing custody and parent time plans during the pendente lite/discovery phase of the case would not take any more time than already permitted under the rules of discovery and procedure, but would spare the parties the cost of the custody evaluator. And if no one else has the courage to assert it, I do: rarely does a conventional custody evaluation and the quality/reliability of the recommendations stemming from it justify the time and money expended on such a custody evaluation.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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*Pendente lite. [penˌdentē ˈlīdē] ADVERB. during litigation; while a suit is in progress.

**Discovery phase. That point in a lawsuit during which each party has the right and opportunity to identify and gather evidence from the opposing party to prepare the case for trial.

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[1] Please do not be offended by the use of this term (“so-called”), as no offense is intended. I chose “so-called” because it reflects nothing other than a candid acknowledgment of reality.

While it is in theory accurate to state that temporary custody and parent time orders are not permanent and have no prejudicial effect on the final child custody and parent time award, in practice temporary custody and parent time orders are neither temporary nor non-prejudicial.

Counsel for the Respondent (as well as many another divorce and family law attorney) has lost count of the number of times trial courts look to the so-called temporary orders as the basis of a finding that the child is “thriving under the current schedule” when the “current schedule,” and then, based upon that dubious finding, courts make other findings such as “Father has not proven that a different custody or parent time would be in the child’s best interest,” as if the father ever fairly or realistically could do so under such circumstances.

Choosing on the basis of “better the devil you know” is plain error, a ruling favoring ignorance born of fear over facts, a false crisis. Here is why:

1) one cannot determine what is the worse choice without something or some things between which to choose; 2) one cannot fairly or accurately compare two things based upon two different sets of circumstances and/or two different criteria; 3) seeing what’s behind door number two does not force the court to choose what’s behind either door number one or door number two; and 4) the worst example of the fallacy of incomplete comparison results from making no effective comparison at all.

Ordering that one and only one custody and parent time schedule be followed during the pendente lite/discovery phase of a child custody case clearly gives that one and only schedule an obvious unfair (and unnecessary), insurmountable advantage. It is impossible to know whether the child would “thrive” as well or better under a different schedule if and when no other schedule or schedules is/are ever given so much as a losing chance to prove itself as good as or better than the only option ever implemented, much less considered. That in itself is contrary to the best interest of the child and clearly fails to subserve the best interest of the child.

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