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.
In my previous blog on the subject of child custody evaluations (link to pervious blog ) I started a series of video critiquing custody evaluations. I never saw the value in them, but for years I went along with them either because A) I thought there may be some value to them that I didn’t yet perceive; and B) I didn’t have a well-defined, well-defended alternative to them to propose. Those days are over.
I now make no secret of being highly disappointed by the intellectual, evidential, and jurisprudential disingenuousness that props up 1) the popularity of child custody evaluations; 2) the way they are performed (meaning the way they are performed currently); and 3) the way they justify accepting or rejecting the custody evaluator’s recommendations. As I explain in more detail in my previous video, custody evaluations are obscenely expensive, waste an obscene amount of time, and are evidentially defective. Yet the majority of lawyers and judges still favor custody evaluations over faster, less expensive, and more reliable forms of evidence. They make many patently lame arguments to support child custody evaluations. One of the most repeated is this: deposing children (a deposition is essentially questioning a child under oath, just not in the courthouse) and/or an interview with a judge risks causing harm to the children, or at least more potential harm than a custody evaluation would cause them. If you ask just how deposing children or having them interviewed by a judge risks causing the children harm, the answer you will get is “that would involve the children in the custody dispute.” But when you ask (as you should ask) how having a custody evaluator interview the children doesn’t “involve the children in the custody dispute” you’ll get a blank stare and/or a “you’re just stupid, if you can’t see the emperor’s new clothes”-kind of response. If you follow up with the question of how a custody evaluator interview is materially any different than having a lawyer or judge interview the children, you’ll be told something along the lines of, “custody evaluator’s are neutral,” but so is a judge. And if the defenders of custody evaluator interviews point out that lawyers for the parents are not neutral and thus are somehow disqualified from questioning nobody other than the children, you can show many ways to prevent a lawyer for a parent from abusing the deposition process (if and only if there is any proof in the first place that the lawyer would do that). By way of just two examples: 1) require the list of questions to be asked of the child to be approved by the judge in advance; and/or 2) hire a referee to supervise the deposition.
Besides, the very presumption that subjecting children to a custody evaluation does not risk materially harming the children (and being nervous is not harm) lacks proof. Nor is there any credible proof that being questioned by a lawyer and/or a judge is inherently harmful to a child in any material way. Face it. Admit it: a child who is uncomfortable with talking about child custody issues is going to be uncomfortable with it regardless with whom who he talks about it. There’s a vast difference between being uncomfortable and being harmed, and any rational human being knows how to tell the difference. The claim that it’s inherently harmful to children for a lawyer or judge to interview them for and on the record but that a custody evaluator who makes no verifiable record cause less or even now harm is bunk.
Why Not Have the Judge Interview the Children About Child Custody?
Why Appoint a GAL or Custody Evaluator When the Judge Can Interview the Children?
This post is the first in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
I can imagine a case in which ordering a custody evaluation and/or appointment of a guardian ad litem may be warranted, even necessary, but generally guardians ad litem and custody evaluations are an obscene waste of time and money and effort. They don’t just fail to justify their costs; they spectacularly fail to justify their costs. Instead, in the overwhelming majority of child custody disputes, the court can and should interview the children directly. The Utah Code expressly provides for this. Section 30-3-10(5), to be exact. Yet in 24 years of practice I have never had a judge agree to interview a child in a child custody dispute. Not once. And I submit that’s ridiculous. In the posts that follow we will discuss why judges interviewing children is clearly superior to appointing guardians ad litem and/or custody evaluations for the vast majority of child custody dispute cases.
make divorce cases more litigant focused and tailored to meeting their needs and the needs of their family, instead of tailoring the cases for the convenience of the courts and lawyers;
focus making divorce cases take less time to work their way through the court system. This reduces anxiety and emotional distress, reduces costs, promotes just and equitable outcomes, and helps prevent other abuses of the legal system caused by delays;
require judges to make commendably detailed written findings of fact and conclusions of law to support their rulings on every issue in a divorce case;
rather than make the standard a negative one (e., the ruling stands unless it can be shown to be an abuse of discretion) require that they show that their rulings are as equitable as they could reasonably make them for the parties and their children under the circumstances;
subject to rigorous, forensic psychological examination and evaluation every litigant in a divorce case in which child custody is an issue and where accusations of any kind of physical, emotional/psychological, sexual, financial, or any other kind of abuse of spouse or children are made.
Find out whether the allegations are true
Find out if the accusations are sincere or motivated by malevolence and/or intent to defraud the court
Why? Because:
if you are falsely accused of abuse, it will be the seriousness of the allegations, as opposed to the substance of the evidence, that will determine how your judge rules.
far, far too often courts, when confronted with allegations of abuse, take the easy way out and err on the side of caution. What I mean is that the courts will analyze the situation like this: “I don’t want to determine that there is insufficient evidence to support these abuse allegations only to have a child or ex-spouse wind up in the hospital or dead later. If that happens, then it looks like I failed to protect the ex-spouse and/or child, which will look like I failed to do my job competently. I may end up the subject of news reports that humiliate and embarrass me and lays my job as a judge in jeopardy. But if I take a “better safe than sorry” approach, then while I will be violating my oath of office by infringing on the parental rights of a parent who I am not convinced is an abuser (and thus denying the children that parent’s loving and beneficial impact on their lives), that would be nigh onto impossible to prove (and stories like this rarely makes the news anyway), and I so I all but completely avoid the risk of being faulted for failing to protect. That settles it. I will err on the side of caution.” That’s a gross miscarriage of justice, but it’s far too often what judges do in these circumstances.
The custody evaluator pool just got bigger! That means faster scheduling, faster completion, and lower prices!
The amendment is effective November 1, 2019.
CJA04-0903. Uniform custody evaluations. AMEND. Adds “Licensed Clinical Mental Health Counselor” to list of professionals who may perform custody evaluations and replaces list of statutory custody factors with citation to relevant sections of Utah Code.
Now these are the professionals who are qualified to perform custody evaluations:
– Licensed Clinical Social Worker;
– Licensed Psychologist;
– Licensed Physician who is board certified in psychiatry;
– Licensed Marriage and Family Therapist; or
– Licensed Clinical Mental Health Counselor.
Utah Family Law, LC | divorceutah.com | 801-466-9277