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Custody Evaluations Are a Terrible Idea

I was recently in court opposing a motion to appoint a custody evaluator in a child custody dispute case. I am generally opposed to child custody evaluations because of the way child custody evaluations are currently performed in Utah as of the date I make this video (December 2022). I generally oppose them (meaning I cannot think of a good reason for them in any case in which I have ever been involved yet). Why is that, you may ask? Many reason. One of the biggest reasons: child custody evaluations, the way they are performed currently in Utah, are an evidential and jurisprudential embarrassment. I don’t have time today to go into all the details in this video, but here are a few thoughts that came to mind as I prepared this video:

  • They are court-sponsored and court-endorsed hearsay.
  • Every child custody evaluator I know of refuses to record interviews with the parents, the children, and collateral sources on and for the record. We literally have no way of knowing whether the evaluator did any of the interviews the evaluator claims to have done.
  • Every custody evaluator I know of refuses to produce their psychological testing data in cases in which they have psychological testing conducted.
  • Child custody evaluators and their evaluations and the recommendations they make based upon their evaluations patently do not conform to the standards for qualifying as experts and for qualifying as expert testimony.
  • They cost not just too much, but way too much, given their extremely poor evidential value. The cheapest custody evaluator retainer I know of is $3,000, and the highest I’ve seen in recent memory is $8,000. Rarely does the evaluator’s retainer cover all the evaluator’s costs. Then there are the costs associated with the evaluator’s written report, which is usually around $2,000-$3,000 more. Then there is the cost of bringing the evaluator to court to testify at the rate of around $200 per hour.
  • The courts all but universally prohibit cross-examination of children regarding the custody evaluator’s claims. In my 26 years of practice, I have experienced one case in which the court interviewed the children on the record after the evaluator (in this case a “parental fitness evaluator”) conducted his work and produced his written report.
  • There are much faster, much less expensive, less laborious, much more reliable ways to gather credible evidence, even factual proof, pertaining to the child custody and parent-time awards. Such as? Deposing the children (“deposing” in this sense means questioning a child under oath, just not in the courthouse) or having the court interview the child in an appropriate setting that both protect the child from potential serious harm—being nervous about being questioned ain’t serious harm and never has been and never will be—while ensuring the deposition is evidentially sound.

o   Rather than costing thousands of dollars a deposition of the child for an hour or two would cost, at most, about half of what a custody evaluation costs. The cost of a judge interviewing the child on the record for an hour or two would cost about the same. That’s more than twice as much evidential value for less money.

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

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