Custody Evaluations Are a Discovery Tool, So Why Make the Opposing Side Share in the Costs?

1. A custody and/or parent-time evaluation is a discovery tool;
2. No one should have to pay to assist an adverse party in a lawsuit in conducting discovery and build a case against him-/herself;
3. Moreover, to prevent a motion for custody and/or parent-time evaluation from being abused as a means of forcing an opposing party to incur expenses he/she does not wish to incur in this action, a party who wishes to have a custody and/or parent-time evaluation conducted should be solely responsible (at least initially) for this expense, i.e., this expense should be treated no differently than any other discovery expense of a party, i.e., the expense of a custody evaluation should be treated no differently than any of the other expenses a party incurs in conducting discovery;

i. Provisions of Utah Rules of Judicial Administration 4-903 notwithstanding, there is nothing inherently prejudicial or otherwise improper about presenting the court with one or two separate custody and/or parent-time evaluations; the court can weigh the probative value of each and benefits from any differing opinions presented by multiple custody evaluations;

1. To reject the notion that each party should be permitted to obtain his/her own custody/parent-time evaluation on the grounds that multiple custody/parent-time evaluations would be expensive ignores the fact that making a party pay for half of an evaluation he/she feels is unnecessary is also unduly expensive for that unwilling party and compels a party to incur expenses he/she does not wish to incur;

2. To reject the notion that each party should be permitted to obtain his/her own custody/parent-time evaluation on the grounds that multiple custody/parent-time evaluations would be “confusing” to the court not only underestimates the intelligence of the court, but presupposes not only that the court is not capable of discerning and weighing the probative value of each evaluation, and falsely presumes the court cannot benefit from differing opinions presented by two evaluations;

3. To reject the notion that each party should be permitted to obtain his/her own custody/parent-time evaluation ignores the fact that input on the subject of child custody and/or parent-time from two experts as opposed to one is inherently helpful to the court in determining the credibility of the experts and the parties, as well as helpful to the court in determining the facts at issue and crafting its orders pertaining to child custody and/or parent-time accordingly.

4. The court should reserve final apportionment of expenses for custody and/or parent-time evaluation expenses and may order an adverse party to pay some or all of the opposing party’s custody/parent-time evaluation expense, if it makes commendably detailed, written findings that good cause exists for so doing;
5. Provisions for the performance of a custody evaluation and for time limits thereon in a discovery and case management order should not:

i. constitute consent to performance of a custody evaluation or the endorsement of the performance of a custody evaluation by the parties;

ii. restrict the parties or the Court from gathering evidence pertaining to child custody and parent-time by other means permitted by law, including but not limited to means provided in Utah Code § 30-3-10 and Rule 6-401 of the Utah Rules of Judicial Administration.

7. This does not mean that the parties should be precluded from jointly moving for the performance of a custody and/or parent-time evaluation for which they share the expense between them.

I welcome your comments.