CUSTODY EVALUATIONS

TWO TYPES OF CUSTODY

STANDARD FOR GAINING CUSTODY

WORKING WITH CUSTODY EVALUATORS

• Custody evaluators will frequently make you believe that they agree with your side of the case. This is done so that you drop your guard. Never assume that the evaluator's report will favor your position.
• Custody evaluators are also people. That means they react to personalities. You are best able to present your case to an evaluator if you appear open and honest.
• Do not argue with the evaluator. Make eye contact and listen when they speak. This establishes a connection. It may help to nod your head as they speak even if you disagree with what they are saying. When you disagree, tell them "I see your point, but..." or agree first "I agree, but would you consider this to be important...."
• The custody evaluator does not care about good guys and bad guys. The evaluator cares about what is in the "best interests of the child(ren)." To relate your case to the evaluator, you must speak his/her language. Your statements must relate in some way to what is best for the child not the parent. For example, the statement, my husband drinks too much, is incomplete. It does not relate how the drinking affects the child(ren). Always relate how the conduct affects the child(ren). A better statement would be:

  "My spouse drinks too much. Because of that, they are rarely home and when they are, they are:.... abusive....spends little quality time with the children....is unable to help the kids with their homework....."

• Provide the evaluator with the documents supporting your statements.
• Provide the evaluator with the names of collateral contacts, people who are aware of your strong points as a parent and the other party's weak points. (It is usually better not to include relatives as part of your contacts since they may have a bias. Medical doctors, police reports, teachers, and others are good sources).
  
• ALWAYS ASSUME when you go to court or visit a custody evaluator that you may be ordered to provide a urine sample for testing to determine if you have used drugs or alcohol.

CUSTODY STUDY ELEMENTS

Although each custody evaluator may have a slightly different approach to performing custody evaluations there are some things you should expect :

1. Initial Interview with Evaluator. At the initial interview, the evaluator will discuss at length the past history of care with the child. The evaluator will attempt to determine who was the primary caretaker.
   BE PREPARED! At the initial interview arrive prepared with a chronology of events clearly set out.
2. Parenting Plan. The evaluator will ask you what parenting plan you believe is best for the children. Have a specific schedule in mind before you meet with the evaluator. In fact, I would suggest you have several options. It is important that you are able to support your proposal. Be prepared to answer why the schedule you offer benefits the children, talk specifically towards their "best interests".
3. Home Visits. The evaluator will make at least one home visit to watch you interact with your child(ren). The evaluator is watching to see:
   • Engage the children. the evaluator is watching to see if you actively play with and interact with your child (It is a good idea to engage your children in an activity before the evaluator arrives at your home. By doing this the activity will seem more normal and it minimizes the presence of the evaluator. You should involve yourself with the the children in the activity. Do not simply act as an observer. (Reading books with children is a valuable activity)
   • Set Boundaries. The evaluator is also watching to see if you set appropriate boundaries for the child(ren) and whether the child(ren) obey(s) those boundaries.
   • Discipline. The evaluator is also judging the form of discipline that you use. As a general rule corporal punishment is frowned upon. The use of time outs or deprivation of activities is viewed favorably. Try not to shout at your child and do not use inappropriate language.
   • Child's reaction to the parent. The evaluator will also try to make an assessment of emotional bond between the parent and child. Does the child call you "mommy" or "daddy." Does the child seek physical interaction.
   • Home Environment. The evaluator is also reviewing the physical environment. Is the home clean? Is it safe? Remember to remove any alcohol containers, empty the garbage and clean the home.
4. Collateral Contacts. The evaluator will ask for a list of persons that you think the evaluator should contact. Family members are usually not good contact since they may be biased in your favor. Where possible use independent contacts such as counselors, daycare providers, and school teachers.
5. Alcohol Assessments. Where there are allegations of alcohol or drug abuse, the evaluator may refer you to a counselor for a chemical dependency evaluation. It is important that you cooperate in that process.
6. Psychological Evaluations. Where there are allegations of emotional or anger problems, the evaluator may refer you to a counselor or psychologist for a psychological evaluation. It is important that you cooperate in that process. Make sure that you communicate with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required. A failure to cooperate will appear in the evaluation.

WHAT YOU SHOULD TRY TO DEMONSTRATE

Remember, there are five critical words in custody evaluations.- "Best Interests of the Child." Custody evaluators listen for issues that relate to that phrase. You should relate how each of your proposals is beneficial to your child(ren). Wherever possible use phrases that mean best interest of the minor child without using those exact words. Using the exact words sounds too legalistic and prepared. Your statements should sound more natural.

There are certain things that evaluators look for in their custody evaluation. You should discuss these issues with the evaluator truthfully since the evaluator will, to a degree, assess your credibility. The issues you should be prepared to raise are the following:

1. Primary Caretaker. Where has the child lived since birth? What was the extent of contact each parent had at each phase of the child's life? What responsibilities did each parent have?

   The best way to support the contention that you provided care for the minor child is through independent documentation. The other parent will no doubt contradict your assertions that you provided much of the care. Independent documentation may include:

   • Daycare or school records demonstrating drop off and pick ups or attendance at parent-teacher conferences. Even if you do not have documents demonstrating attendance at school functions at least verify the dates of the conferences and familiarize yourself with the daycare provider's or teacher's names. The more information you are able to provide in that regard the more credible you will appear as an active parent.
   • Medical records may document which parent brought the child in for a medical or dental appointment. If you can acquire these records prior to meeting with the evaluator, do so.
   • Homework assignments or report cards may require a parental signature before they are submitted at school. That signature may provide independent verification that the parent reviewed or was actively involved in the child's schooling. Wherever possible acquire and retain these documents. Provide them to the custody evaluator to support your claims that you were actively involved in the children's schooling.
   • Be able to relate who the child(ren)'s friends are and what activities they enjoy in detail.
2. Stability. The evaluator will be interested in which parent is able to provide the greater stability for the child. Stability includes a stable residence and a stable job. You may wish to document the ways in which you have provided greater stability in the past. You obviously will not emphasize those areas that do not favor you.

   To effectively present the areas where you have provided or are able to provide more stability, you may wish to create detailed charts. Visual aids help to present a clear picture to the evaluator. For example you may wish to create a chronological chart regarding each parent's residence and how many times the child has changed residences or schools. You may also wish to create a summary of each parent's employment to demonstrate stable financial circumstances. Independent verification is also very helpful. Where possible, you may wish to procure documents demonstrating residence changes such as leases, purchase agreements or real estate taxes.

3. Endangerment or Neglect. If you are raising issues of endangerment you must relate specific incidents. Endangerment may be physical, emotional or developmental. A calendar may be helpful to document the dates of the incidents. Documentation can carry critical weight with this type of allegation. Documents may include:
   • Medical reports documenting injuries from abuse or lack of supervision;
   • Medical reports documenting complications because of neglect - health issues such as asthma from cigarette smoke or lice from lack of hygiene.
   • Police reports relating to police calls to the other parent's home;
   • Any child protection reports;
   • Counseling records for the child or the parent;
   • The other parent's criminal or driving record;
   • The criminal or driving record of individuals that have significant contact with the minor child(ren);
   • School records may document attendance problems, school performance problems, counseling issues or erratic child behavior while in the other parent's care or after returning from the other parent's care.

   REMEMBER: Endangerment only exists if you tie the other parent's conduct into the child's care and the child's best interests. For example, if you allege the other parent has an alcohol problem. It only will be effective if you can relate specific incidents where the alcohol use or abuse affected the minor child(ren). (e.g. The parent passed out on the couch while the child played-unsupervised. The parent drove the car while intoxicated with the child in the car. The parent drove the child in the car without a car seat. The parent was out partying consistently while the child was cared for by a stranger, or they leave a young child home alone.)

1. Parenting Plan. The custody evaluator will want to know what your proposal is for parenting. You should be prepared with research, facts and answers. You may wish to write out your answers to the following questions so that your response seems thought out.
   The answers should include:
   • Where will the child live? Why is that in the child's best interests?
   • What school will the child attend?
   • Why is that in the child's best interests?
   • What will your work schedule be?
   • Will that allow you sufficient time to supervise the child?
   • What schedule do you propose for the other parents?
   • How does that schedule provide stability?
   • Why is that schedule in the child's best interests?
     (Remember: The custody evaluator is also looking at which parent is more likely to facilitate contact with the other parent. If you appear to be an unreasonable obstructionist with regard to the other parent's contact, it may be used against you. See Minnesota Statutes Section 518.17, Sub 1, (13).)

PARENTING NOTEBOOKS

In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your child(ren). What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party's parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.

PRIVATE CUSTODY EVALUATIONS

You may also have a private custody evaluation performed by an independent professional. Often times the only way to combat a biased or unfavorable custody evaluation is with a private custody evaluation. Custody evaluations can be costly and may run anywhere from $2,000 to $8,000.

CUSTODY AND PARENTING TIME / VISITATION

"Custody" is an emotionally laden term. To parties in a divorce, it often takes on unintended meanings. Many parents believe that if they are not awarded joint physical custody they have somehow been determined to be an inferior parent. That is not the case. Custody determinations are necessary to provide stability for children in the way they are raised. It also helps to provide a home base and security which are important considerations for children of all ages, and even more so for the very young. Custody determinations in Minnesota are based on what is in the "best interests" of the children.

There are two types of custody, "legal" and "physical" custody.

Legal custody is the decision making process regarding important life choices for minor children. Parents exercise legal custody when they decide issues such as religion, medical care and schooling.

Under Minnesota law, there is a presumption that both parents should share in this decision making process. As a result, most parents share legal custody. However, in situations, where the parents are unable to communicate (i.e. where domestic abuse has occurred) or where they have a manifest difference of opinion regarding legal custody issues, it may be awarded to one parent.

It is important to remember, however, that because parents differ on one issue, does not mean they cannot share legal custody with regard to other issues. For example, if mom is Jewish and wishes to raise the children in the Jewish faith, whereas dad is Catholic and has a desire to raise the children Catholic, the court may determine that one parent will be able to make decisions with regard to religion but allow both parents to share responsibility for any other legal custody issues.

Physical custody refers to the primary residence of the minor children. In other words, it determines where the minor children will reside.

If parents are unable to agree on who shall have physical custody, the court is forced to make a difficult determination weighing a number of factors set out in Minnesota Statutes under Chapter 518. Generally speaking, where joint physical custody is not agreed upon by both parties, the court will award physical custody to only one parent. The other parent then shares parenting responsibilities based on a schedule which is commonly referred to as "visitation" or a parenting schedule.

Importance of Physical custody Label. The label of "sole physical custody" or "primary physical custody" or "primary physical residence" is very important under Minnesota law. If one party has sole physical custody or primary physical residence, the other parent is considered the non-custodial parent and will be required to pay full guideline child support without any offset. That is true regardless of the schedule followed by the parents. This "label" will be changing in January 2007 for new cases that are filed.

This can lead to incongruous results. For example, if one parent has the label sole physical custody but the other parent has the children 40% of the time, that non-custodial parent must still pay guideline child support which may be 25% of net income for one child, 30% for two and 35% for three.

By contrast, if the court order indicates that the parents share physical custody based on the exact same schedule, the child support is significantly reduced and, perhaps eliminated based on a child support offset.

Proposed Changes in the Law and Federal Class Action Lawsuits on Custody. Changes in the law as it relates to custody are occurring slowly. In the past few legislative sessions, bills have been introduced which would create a presumption that the parents should share physical custody. To date, those laws have not been passed. With a presumption for shared physical custody, litigation is likely to be significantly reduced regarding that issue. Moreover, it is likely to cause one parent who tries to move away (one parent seeking to relocate with the children out of state) far more difficult.

A number of federal lawsuits have been filed as class action law suits in order to seek a change in the laws of most states to include a presumption for joint physical custody. The premise of the law suits is that parenting is a fundamental right protected by our constitution. As a result, if a state intends to infringe upon such a right, it must demonstrate that it has a compelling state interest and that the least intrusive means was used to address the states compelling interest.

Visitation and Parenting Schedules. Visitation and parenting schedules are also crafted by the Court taking into consideration what is in the children's best interests. Court's will most often defer to parental agreements regarding visitation. However, when parents are unable to agree, courts will provide a schedule that takes into consideration weekly arrangements during the school year, holiday visitation schedules, and extended or summer visitation. In scheduling parenting responsibilities, it is generally accepted that younger children require more frequent contact with both parents for a shorter period of time. As children mature, it is often more stable to have them living in one home throughout the school week to provide greater familiarity and comfort.