Thursday, April 3, 2008

More Griping About Custody Evaluations – And a Solution

I again go on record to say what so many attorneys secretly know or at least believe, but are seemingly afraid to admit:

1) custody evaluations are often requested in divorce cases as a knee-jerk reaction without the requesting party considering whether an investigation into custody is necessary or even warranted; and

2) custody evaluations are often requested not out of any genuine desire for professional analysis of custody, but as a bad faith means of crushing the opposing party under what is for most parents the unbearable financial burden associated with paying for a custody evaluation.

Why will so few admit these facts? I imagine most would agree with at least some of my suggested answers:

1) It’s hard to argue that a custody evaluation can provide useful information potentially valuable to the court and of potential benefit to the children; so if you oppose a custody evaluation, you can easily be branded as “anti-information,” “anti-truth-seeker,” “anti-will-somebody-please-think-of-the-children” etc.

a. But the fallacy of this hasty reasoning lies in the fact that just because something may be beneficial or is beneficial does not necessarily justify the thing itself. Installing breathalyzer ignition interlocks on every single car would probably radically reduce DUIs, but that sole benefit, considered in isolation, clearly does not justify the accompanying expense and the burden. The same reasoning applies to the knee-jerk request for a custody evaluation. I can be all for truth and benefit to kids yet oppose a financially crippling means of fostering it.

2) Accusing a party of a malicious motive in requesting a custody evaluation in bad faith is similar to accusing someone of making a charitable donation solely for the tax break.

a. But it should be readily apparent that where two parents’ combined household income is $4,000 or less, it is ridiculous to request that one or both of them spring for a custody evaluator’s $2,000 to $3,000 initial retainer, let alone the total cost of a completed evaluation. Anyone who requests a custody evaluation under such circumstances is, in my book, presumptively acting in bad faith, or at least out of stupidity, and neither acting in bad faith nor out of stupidity justifies a custody evaluation.

So what do you if faced with a knee-jerk or bad-faith request for a custody evaluation? Try this:

  • Retain the evaluator for a custody evaluation, and pay the initial retainer, but have the evaluator perform only a preliminary custody interview in preparation for and for presentation of findings at the statutorily-mandated mediation settlement conference (Utah Code § 30-3-39).
  • If the evaluator’s preliminary findings/report provided at the mediation/custody interview combination settlement conference satisfies the parties and they can craft a parenting plan around it, then the parties settle the issue of custody, the evaluator’s work is done, and a full-blown custody evaluation (and its attendant costs) will not be necessary.
  • If mediation does not result in settlement, then the evaluator’s preliminary findings/report are not wasted and the evaluator simply continues to conduct and complete a full-blown custody evaluation as the parties conduct discovery and prepare for trial.
  • The parties get to mediation (as mandated by statute) early in the process when mediation is most efficient and effective.

As much as I hate the term, this proposal is a “win-win” for both parties. Each gets what he/she wants without compromising his/her position in the underlying litigation, and this arrangement has the fringe benefit of getting the parties to mediation quickly and with useful information on custody from the evaluator, without having to spend thousands of dollars and wait months on end. Neither party suffers any prejudice or wastes any time or money on the mediation/custody interview combination settlement conference because this arrangement preserves the right to have the evaluator apply the preliminary work and findings toward a full-blown custody evaluation, if mediation fails. And last, but not least, this arrangement is a great impediment to those who would request a custody evaluation out of haste or bad faith without you having to risk looking anti-custody evaluation.

I welcome your comments on this posting.

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