The way courts in Utah conduct custody evaluations nowadays is indefensible.
- There is nothing in UCJA rule 4-903 (the rule governing custody evaluations) that requires a custody evaluation to consist of little more than educated guesses. Yet the custody evaluation process in Utah currently consists of ordering the custody evaluator:
- to compare the actually implemented, so-called  “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”.
- Otherwise stated, though 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, that’s how must custody evaluations are not just performed, but required by the court to be performed without exception.
- Custody evaluations
- needlessly cost thousands of dollars and often exceed $10,000;
- are supposed to take approximately four months to complete (and could easily be completed in four months or even less), but are never completed in anything close to that amount of time or less.
- Have a probative value that is, for the most part, not merely nil, but of negative probative value because they are more often than not incompetently conducted.
- It is hard to imagine:
- 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
- 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.
Parents could avoid the expense of time and money entailed by a custody evaluation by using the pendente lite/discovery period to examine and test the parties’ opposing proposed custody and parent-time awards. Why would anyone try to prevent obtaining any such evidence on the subject of child custody and parent-time? The answer is clear enough: the less evidence there is, the better for the party who benefits from the dearth of evidence. Usually, that’s the parent who is made—by judicial fiat issued following a proffer hearing—the custodial parent under the so-called “temporary custody order”. That parent wants to ensure that the other parent has as little custodial and parent time awarded to (let’s call him “him”) him as possible. Given that the so-called “temporary order” so often awards one parent sole or primary physical custody of the parties’ child, that “temporary” custodial parent has everything to lose 1) if a joint physical custody schedule is ever implemented and tested during the custody evaluation and shown to be as good as or better than the statutory minimum; and 2) if a custody evaluator recommends a joint physical custody award.
If neither 1) the parties’ competing proposed child custody and parent- time awards are implemented nor 2) a custody evaluation is conducted during the pendente lite/discovery phase of this case for the purpose of gathering evidence bearing upon the child custody and parent time award, then inertia favors the so-called “temporary” custodial parent.
Yet nothing about testing competing proposed custody schedules and/or performing a custody evaluation prevents either parent from presenting any admissible evidence he/she could and would present in the absence of a custody evaluation. Parents who oppose testing competing proposed child custody and parent-time awards do so for one reason alone: to ensure the court has as little compelling real-world, reliable, probative evidence available to it as possible on the issue of child custody and parent time.
Trying and testing and comparing competing child custody award proposals are the best and least expensive means whereby the parties can gather factually verifiable evidence of the parties’ competing custody and parent time award proposals actually implemented. Leaving the question of what child custody and parent time schedule actually works to the guesswork of a custody evaluator (who, when a conventional child custody evaluation order is issued, is left to “compare” the implementation of sole custody schedule to nothing else, and then on that basis determine whether joint equal custody will work without actually seeing joint equal custody ever implemented for any evidentially adequate period of time) is patently absurd.
Utah Family Law, LC | divorceutah.com | 801-466-9277