In contested custody cases, there are many types of evaluations that the court can order or parties can agree to undergo in order to assess the fitness of the parents and the living and decision-making arrangements that suit the best interests of the children. These fall into two broad categories:
- Evaluations performed by the Court and courthouse staff or contractors; and,
- Evaluations performed by private professionals. There are many different types of evaluations performed by private professionals. For example, private custody evaluations, psychological testing or evaluations, drug/substance/alcohol evaluations or assessments and testing, psychosexual risk assessments and other evaluations of alleged and convicted sexual offenders, and so on.
Evaluations – whether performed by courthouse staff or contractors or by a private professional – must be ordered by the court. Court-ordered evaluations are not confidential, meaning it is expected that the information gathered, results, and any reports will be disclosed to the parties and the court.
This article addresses court evaluations. Private evaluations and other types of evaluations will be addressed in separate volumes.
Specifically focusing on Montgomery County Circuit Court, court evaluations are performed by courthouse staff, who are general Licensed Clinical Social Workers (LCSWs). There are two types of court evaluations in contested custody cases:
- Custody Evaluations; and,
- Visitation Assessments.
A court custody evaluation is more in-depth than a court visitation assessment. The purpose of a court custody evaluation is to make recommendations about where the child(ren) should live, when the child(ren) should spend time with each parent/caregivers, and how decisions involving the child(ren) should be made. These recommendations impact residential or physical custody and legal custody. The purpose of a visitation assessment is to provide recommendations about the child(ren)’s schedule for spending time with each parent when there is no dispute about with which parent the child(ren) should live.
Both the court custody evaluation and court visitation assessment start off with an intake session, usually and preferably immediately after the Scheduling Hearing. The purpose of the intake session is to gather basic information about the parents, children, and providers, and to sign authorizations for the evaluator’s office to communicate with the child(ren)’s school and daycare providers and to review Department of Social Services/Child Protective Services records. Occasionally, the court evaluators’ office will screen out cases referred for evaluations if the parents disclose that there is no material disagreement about the living and decision-making arrangements for the child(ren). If the evaluation is screened out, it is cancelled, and the parties provided written notice.
Assuming the evaluation proceeds, after the initial intake, at least 45 days before the Settlement/Status Hearing, a court evaluator will be assigned to the case and will contact the parties directly to commence the evaluation process. Usually, the evaluation involves:
- Individual meetings with each parent/party in the contested custody litigation. This is to gather information about the history of the parties, the children, and what schedule and decision-making arrangement the party seeks and why.
- Home observations in each parent’s/party’s home when the child(ren) are present, to observe the parent/party and child(ren) interacting together. If a parent/party resides outside of Montgomery County, then the observation occurs at the courthouse.
- School and daycare reports. These are written reports, faxed to each child(ren)’s school and daycare, requesting information about and impressions of the child and parents.
- Mental health providers. Evaluators will ask for written authorization from any parties undergoing mental health treatment (current and possibly past) to sign a written authorization to speak with the party’s mental health providers. This is a waiver of the party’s privilege/confidentiality with that provider. Additionally, if any child subject to the evaluation receives or has received mental health services, the evaluator will request the appointment of a Child Privilege Attorney, to determine if the evaluator will be authorized to speak with the child’s mental health provider(s) and review mental health records.
- Collateral witnesses. Parties provide the evaluators with names and contact information of persons the party wishes the evaluator to speak with about the party’s parenting and fitness, and the appropriateness (or not) of the other party/parent. Evaluators use their discretion in deciding whether to speak with collateral witnesses or not. This may also include persons the evaluator decides to contact on his/her own initiative.
- Review records. The evaluator will research for prior domestic violence cases between or involving either party and any criminal records of both parties. If the child(ren) or any party has been the subject of a Department of Social Services/Child Protective Services investigation, the evaluator will review these records, which are otherwise confidential and not open to public inspection or review by the court.
- Requests for drug/substance/alcohol testing. If there are allegations of drug, substance, or alcohol abuse, the evaluator may request that either or both parties submit to testing.
- Oral report. At the Settlement/Status Hearing, the evaluator gives an oral report, generally touching on the parties’ relationship history, personal histories and mental health, the child(ren) and child(ren)’s needs, documents reviewed, information gathered from schools, daycares, and collaterals, and recommendations about the matters referred. So, residential or physical custody, a specific schedule (school year, summer, holidays), and decision-making that the evaluator believes to be in the child(ren)’s best interests based upon the evidence provided to the evaluator and the evaluator’s impressions. The evaluator’s recommendations may include recommendations about further forensic testing (such as psychological testing) or conditions (such as supervised visitation). Parties’ attorneys are entitled to ask clarifying questions of the evaluator. If the attorney has more substantial questions or wants to review the evaluator’s file and records before trial, the attorney is entitled to take the evaluator’s deposition, with certain conditions.
- Transcript. The court will order a written transcript of the oral report and file it in the court record in a sealed envelope, so it is not available for public inspection except by parties, their attorneys, and the court.
At trial, the court evaluator is generally accepted as an expert witness in the field of custody evaluators. The transcript of his/her oral report may be offered into evidence, received and reviewed by the court. The evaluator will testify if subpoenaed to trial, and is subject to direct examination, cross examination, and redirect examination, as well as direct inquiry by the judge.
A court evaluator’s evaluation and consideration of the facts and circumstances stops when he/she gives his/her oral report at the Settlement/Status Hearing. The evaluator will not continue work or consider further evidence after this date. In a sense, the court evaluation is a snapshot that freezes as of the Settlement/Status Hearing. A court evaluator does not perform psychological testing, drug/substance/alcohol testing, or other types of forensic testing. Such testing must be referred out to a specialist. So, it is possible to undergo a court custody evaluation, but only receive recommendations for further forensic evaluation and/or testing before recommendations about a living arrangement and schedule or decision-making can be made.
Court evaluations in Montgomery County Circuit Court are, as of this writing, free of charge. Court evaluations may not be ordered in every case in which a request is made, even if both parties agree that a court evaluation should take place. Rather, the court may make its own assessment of whether to order a court evaluation, considering extenuating factors such as domestic violence, addiction, abuse, mental health of parties and child(ren), and so forth. If the parties do not jointly agree to request a court evaluation at the Scheduling Hearing, any later or one-sided requests must be made in writing with justification for the evaluation. Generally, the court will only order one court evaluation per case and only in the original determination of custody, though in extenuating circumstances the court may order multiple evaluations in later cases or evaluations in post-judgment modification or enforcement cases.
Court evaluations in Montgomery County Circuit Court are helpful when there have been Department of Social Services/Child Protective Services investigations, as the court evaluations generally get access to review the records. Private evaluators in Montgomery County generally do not. However, when one or both parents/parties live outside of Montgomery County or the case involves a parent’s/party’s relocation with the child outside of Montgomery County, the court evaluations may not be as helpful because the court evaluators are not permitted to travel outside of Montgomery County when conducting an evaluation. Sometimes a court evaluation is paired with a Best Interest Attorney (who can travel) for a more complete picture. This can and should be weighed against the cost of a private evaluation which need not be geographically limited, except by cost. There are many factors to consider when assessing the advantages and disadvantages of the various evaluations to decide whether and what type of evaluation to request.
If you are represented by an attorney, your attorney can discuss with you the appropriateness of requesting an evaluation, the type(s) of evaluation(s) or testing to request, and the cost. If your case has been referred for a court custody evaluation (or any evaluation or testing for that matter), your attorney can discuss in more detail what to expect and how to prepare.