Types of Evaluations in Custody Cases Volume 2: Private Custody Evaluations

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:

1) Evaluations performed by the Court and courthouse staff or contractors; and,

2) 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 post addresses private custody evaluations. Court evaluations and other types of evaluations are addressed in separate volumes. Click here to read Volume 1 on Court Custody Evaluations.

Private custody evaluations are conducted by an evaluator, either selected jointly by both parties or selected by the court, and paid for by one or both parties. Even if the evaluator is jointly selected by the parties, pursuant to Maryland Rule 9-205.3, the evaluator must be appointed by the court. The cost of a private custody evaluation can vary significantly, depending upon the evaluator.

Private custody evaluators are mental health professionals. Their credentials range from Licensed Clinical Social Workers to licensed Psychologists. While many private evaluators perform all of the evaluation him- or herself, some private evaluators co-evaluate, as a team with two evaluators (often one male and one female). This depends upon the evaluator and his/her process.

The purpose of a private custody evaluation is to make recommendations about where the child(ren) should live, when the child(ren) should spend time with each parent/caregiver, and how decisions involving the child(ren) should be made. These recommendations impact residential or physical custody and legal custody.

The private custody evaluation process often begins with a conference call among the attorneys and evaluator to determine if there are any conflicts of interest (so, prior connections with either party), the evaluator’s availability, and to provide basic information about the case and parties. Once the private evaluator is appointed by the court and initial deposit paid, the first step is usually for the evaluator to meet with the parties – sometimes jointly or sometimes individually, depending upon the evaluator’s process – for interviews of the parties. Afterward, the process usually involves:

1) 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. As opposed to a Montgomery County court custody evaluation, a private evaluator can travel wherever the parties can afford to send him/her for the home observations. This might be to other counties or even out of state.

2) School and daycare. The evaluator will likely ask to speak with the child(ren)’s school and daycare providers and, possibly, review records from them.

3) Medical providers. If a child has special needs, the evaluator may contact and review medical records from the child’s healthcare providers. Likewise, if a child shows signs of undiagnosed special needs, the evaluator may request further evaluation or testing of the child by a specialist. Likewise, if a parent has a disability or medical issues that impact his/her parenting or parental fitness, the evaluator might speak with the parent’s medical providers, review records, or even request an independent medical examination or other evaluation of the parent by a specialist.

4) 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. If the evaluator is a psychologist and has been authorized by the court order appointing him/her, the evaluator may conduct psychological testing of one or both parties or the child(ren) as part of his/her evaluation. If the evaluator is not a psychologist, the evaluator may refer the parties and/or child(ren) for psychological testing. As opposed to a court evaluator, this can be done during the private custody evaluation process and the results taken into account in the private evaluator’s recommendations.

5) Collateral witnesses. Parties provide the evaluator 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. Collateral witnesses might include family, friends, nannies, the child(ren)’s medical providers, coaches/extracurricular activity leaders, and other people connected with the child and one or both parties.

6) Records review. The evaluator will request documents he/she wishes to review and not already provided by the parties. Likewise, the evaluator will review documents provided by the parties. This might include communications between the parties (texts, e-mails, PM’s, voicemails, etc.), photographs and videos, or any other documents the parties and/or attorneys think important and relevant.

7) Social Services/Child Protective Services Records. If the child(ren) or any party has been the subject of a Department of Social Services/Child Protective Services investigation, a private evaluator will ask to review the records. Whether the private evaluator will get access to the records depends upon the practices of DSS/CPS in the county in which the custody case is pending and whether the court grants an order authorizing the evaluator’s access. DSS/CPS records are otherwise confidential and not open to public inspection or review by the court, and each county has its own practices regarding these. For example, it can be extremely difficult, and often impossible, for a private custody evaluator (but not a court custody evaluator) to get access to these records.

8) 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.

9) Oral and written report. Either at or prior to the Settlement/Status Hearing (in accordance with the order appointing the evaluator and Maryland Rule 9-203.5), 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, about residential or physical custody, a specific schedule (school year, summer, holidays), any conditions on recommended parenting time (such as continued drug/substance/alcohol testing and sobriety, supervision, therapy and documentation thereof, etc.), 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 expertise and impressions. Depending upon the evaluator’s protocols, the private evaluator’s report may be given on the record (so, in the presence of a court reporter) or not, or with parties present or only to the attorneys. The oral report is generally followed up with a written report.

At trial, the evaluator is generally accepted as an expert witness in the field of custody evaluators. His/her written 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.

While a private evaluator’s evaluation and consideration of the facts and circumstances usually stops when he/she gives his/her oral and written reports, the evaluator is not precluded from taking additional information into account.

Private custody evaluations are requested by written motion, which may be joint if both parties agree or on behalf of one party if not. The order appointing a private evaluator will address various tasks and deadlines with which the evaluator is charged, including provisions for the safety of the participants if domestic violence is involved. Maryland Rule 9-203.5 specifies the various requirements for the motion and order of appointment.

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 and private evaluators 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, a private evaluation is more helpful if there are the financial resources to pay for the evaluator’s travel. 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 private custody evaluation (or court evaluation or for testing for that matter), your attorney can discuss in more detail what to expect and how to prepare.

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