--Albert Schweitzer
The procedure for appointment of a custody evaluator is provided in Utah Rule of Judicial Administration 4-903, and it is an incredibly long rule (915 words; the Gettysburg Address consists of 186 words). But you really cannot appreciate Rule 4-903’s volume and complexity without seeing for yourself:
Rule 4-903. Uniform custody evaluations.
Intent:
To establish uniform guidelines for the preparation of custody evaluations.
Applicability:
This rule shall apply to the district and juvenile courts.
Statement of the Rule:
(1) Custody evaluations shall be performed by persons with the following minimum qualifications:
(1)(A) Social workers who hold the designation of Licensed Clinical Social Worker or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure.
(1)(B) Doctoral level psychologists who are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure.
(1)(C) Physicians who are board certified in psychiatry and are licensed by the state in which they practice may perform custody evaluations within the scope of their licensure.
(1)(D) Marriage and family therapists who hold the designation of Licensed Marriage and Family Therapist (Masters level minimum) or equivalent license by the state in which they practice may perform custody evaluations within the scope of their licensure.
(2) Every motion or stipulation for the performance of a custody evaluation shall include:
(2)(A) the name, address, and telephone number of each evaluator nominated, or the evaluator agreed upon;
(2)(B) the anticipated dates of commencement and completion of the evaluation and the estimated cost of the evaluation;
(2)(C) specific factors, if any, to be addressed in the evaluation.
(3) Every order requiring the performance of a custody evaluation shall:
(3)(A) require the parties to cooperate as requested by the evaluator;
(3)(B) restrict disclosure of the evaluation’s findings or recommendations and privileged information obtained except in the context of the subject litigation or other proceedings as deemed necessary by the court;
(3)(C) assign responsibility for payment;
(3)(D) specify dates for commencement and completion of the evaluation;
(3)(E) specify any additional factors to be addressed in the evaluation;
(3)(F) require the evaluator to provide written notice to the court, counsel and parties within five business days of completion (of information-gathering) or termination of the evaluation and, if terminated, the reason;
(3)(G) require counsel or parties to schedule a settlement conference with the court and the evaluator within 45 days of notice of completion or termination unless otherwise directed by the court so that evaluator may issue a verbal report; and
(3)(H) require that any party wanting a written custody evaluation to be prepared give written notice to the evaluator after the settlement conference.
(4) In divorce cases where custody is at issue, one evaluator may be appointed by the court to conduct an impartial and objective assessment of the parties and submit a written report to the court. When one of the prospective custodians resides outside of the jurisdiction of the courttwo individual evaluators may be appointed. In cases in which two evaluators are appointed, the court will designate a primary evaluator. The evaluators must confer prior to the commencement of the evaluation to establish appropriate guidelines and criteria for the evaluation and shall submit only one joint report to the court.
(5) The purpose of the custody evaluation will be to provide the court with information it can use to make decisions regarding custody and parenting time arrangements that are in the child’s best interest. This is accomplished by assessing the prospective custodians’ capacity to parent, the developmental, emotional, and physical needs of the child, and the fit between each prospective custodian and child. Unless otherwise specified in the order, evaluators must consider and respond to each of the following factors:
(5)(A) the child's preference;
(5)(B) the benefit of keeping siblings together;
(5)(C) the relative strength of the child's bond with one or both of the prospective custodians;
(5)(D) the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted;
(5)(E) factors relating to the prospective custodians' character or status or their capacity or willingness to function as parents, including:
(5)(E)(i) moral character and emotional stability;
(5)(E)(ii) duration and depth of desire for custody;
(5)(E)(iii) ability to provide personal rather than surrogate care;
(5)(E)(iv) significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
(5)(E)(v) reasons for having relinquished custody in the past;
(5)(E)(vi) religious compatibility with the child;
(5)(E)(vii) kinship, including in extraordinary circumstances stepparent status;
(5)(E)(viii) financial condition; and
(5)(E)(ix) evidence of abuse of the subject child, another child, or spouse; and
(5)(F) any other factors deemed important by the evaluator, the parties, or the court.
(6) In cases in which specific areas of concern exist such as domestic violence, sexual abuse, substance abuse, mental illness, and the evaluator does not possess specialized training or experience in the area(s) of concern, the evaluator shall consult with those having specialized training or experience. The assessment shall take into consideration the potential danger posed to the child’s custodian and the child(ren).
(7) In cases in which psychological testing is employed as a component of the evaluation, it shall be conducted by a licensed psychologist who is trained in the use of the tests administered, and adheres to the ethical standards for the use and interpretation of psychological tests in the jurisdiction in which he or she is licensed to practice. If psychological testing is conducted with adults and/or children, it shall be done with knowledge of the limits of the testing and should be viewed within the context of information gained from clinical interviews and other available data. Conclusions drawn from psychological testing should take into account the inherent stresses associated with divorce and custody disputes.
Advisory Committee Note. The qualifications enumerated in this rule are required for the performance of a custody evaluation. However, if the qualifications are met, a practitioner from another state with a different title will not be barred from performing a custody evaluation.
What follows in the left column is the text of H.B. 169, and in the right column are my comments.
| Text of the bill | My comments |
| CHAPTER 10. CHILD CUSTODY EVALUATION ACT
59 (3) "Party" means either the petitioner or respondent, or their respective attorneys, in an 61 Section 3. Section 30-10-103 is enacted to read: 90 (e) when and how to interview or assess adults, infants, and children; 121 significant other; 130 Section 4. Section 30-10-104 is enacted to read: 152 incomplete information. 160 (2) The court shall consider the financial situation of both parties in determining 165 Section 7. Section 30-11-101 is enacted to read: CHAPTER 11. PARENT COORDINATION ACT
177 Section 9. Section 30-11-103 is enacted to read: 183 (c) a certified family mediator with a master's degree in a mental health field. 214 may request the coordinator continue for additional time. The court shall determine whether 219 Section 11. Section 30-11-105 is enacted to read: 236 Section 12. Section 30-11-106 is enacted to read: 245 (3) The Administrative Office of the Courts may create a sliding scale for payment to | I MEAN, HOW MANY OF THE CURRENT POOL OF CUSTODY EVALUATORS WOULD MEET THIS STANDARD NOW? WHAT WILL IT COST TO GET AND KEEP ALL THE CERTIFICATIONS PROPOSED? WHERE WOULD THE TRAINING COME FROM? DOES THE TRAINING EVEN EXIST YET? WHO WOULD WANT TO SPEND THE TIME AND MONEY NEEDED TO QUALIFY AS A CUSTODY EVALUATOR?, AND IF HE/SHE DID, WOULD HE/SHE BE ABLE TO RECOUP THOSE COSTS THROUGH CONDUCTING ENOUGH CUSTODY EVALUATIONS TO BREAK EVEN AT BEST? GRANTED, AN EVALUATOR WITH THIS LEVEL OF SKILL SHOULD BE HIGHLY QUALIFIED TO CONDUCT AN EVALUATION, BUT YOU’RE NARROWING THE POOL TO THOSE WHO WILL HAVE TO SPECIALIZE AS CUSTODY EVALUATORS, THUS SHRIKNING THE COMEPTITIVE FIELD TO TWO OR THREE EVALUATORS, WHO CAN THEN CHARGE WHATEVER THE MARKET WILL BEAR. SECONDLY, THIS NEW SECTION OF CODE APPEARS TO MAKE AN IMPLICIT ENDORSEMENT OF CUSTODY EVALUATIONS. CUSTODY EVALUATIONS ARE OFTEN USED TO PUT FINANCIAL PRESSURE ON A PARTY, I.E., THEY ARE NOT SOUGHT TO GET AT THE FACTS, THEY ARE SOUGHT TO SPEND A PARTY INTO SUBMISSION. THIRD, IF THIS BILL PASSES, NOW NOT ONLY WILL DIVORCING COUPLES AND PARENTAGE ACTION PARTIES HAVE TO PAY FOR LAWYERS, DIVORCE ORIENTATION COURSES (PLURAL) AND MEDIATORS, THEY WILL HAVE TO DEAL WITH AN ENTIRELY NEW BUREAUCRACY AND LEVEL OF COMPLEXITY WITH CUSTODY EVALUATORS, THE ASSOCIATED COST. AH, SO THAT’S HOW YOU ADDRESS THE COSTS OF BEING QUALIFIED TO BE A CUSTODY EVALUATOR—AN UNFUNDED MANDATE. ARE YOU SERIOUS? ISN’T THERE A CONSTITUTIONAL PROSCRIPTION AGAINST INVOLUNTARY SERVITUDE? AND LOOK AT THE REST OF THE NEW RED TAPE THE POOR PARTIES AND THE EVALUATOR HAVE TO GO THROUGH JUST TO GET STARTED! I HAVEN’T READ THE REST OF THE PROPOSED BILL YET, BUT GIVEN WHAT I’VE SEEN SO FAR, I’M GUESSING THERE’S GOING TO BE A CAP ON WHAT THE EVALUATORS CAN CHARGE TOO. OH, AND THERE IT IS, JUST AS EXPECTED. THIS IS SOCIALIZED LITIGATION AND IT WILL BE DISASTROUS. RATHER THAN ADD COMPLEXITY AND BUREAUCRACY TO CUSTODY EVALUATIONS, YOU SHOULD HAVE WORKED ON MAKING THE PROCESS SIMPLER, FASTER, AND LESS COSTLY. THERE IS, AS YET IN MY READING OF THIS BILL, ABSOLUTELY NOTHING GOOD. GOOD GRIEF! ANOTHER INTERMEDDLER IN THE DIVORCE PROCESS GIVEN THE LEGISLATURE’S STAMP OF APPROVAL? ONCE IT’S IN THE CODE, YOU KNOW IT WILL BECOME COMMONPLACE IN EVERY DIVORCE. AFTER ALL, IT’S IN THE CODE! HEY, RATHER THAN OUTSOURCING EVERYTHING TO NON-JUDGES, WHY NOT JUST INCREASE THE NUMBER OF JUDGES AND COMMISSIONERS AND TRUST JUDGES AND COMMISSIONERS TO DO THEIR JOB WITHOUT NEEDING (BY MY COUNT NOW) THREE OR FOUR OTHER SUPPORT STAFF (I.E., GUARDIAN AD LITEM, CUSTODY EVALUATOR, SPECIAL MASTER, PARENT COORDINATOR? THIS IS IRRESPONSIBLE AND SHOWS AN UTTER LACK OF CREATIVITY OR FAITH IN THE JUDGMENT OF JUDGES AND COMMISSIONERS. LET ME GUESS, HUNDREDS OF HOURS OF TRAINING WILL BE REQUIRED TO BE A "PARENT COORDINATOR"? OH, MY MISTAKE. IT’S A MERE 80 HOURS. MMM HMM. JUST AS I EXPECTED. AND WHO WILL PROVIDE THIS TRAINING? AND SURELY THE FEES CHARGED BY THE COORDINATOR WILL NOT BE UNDER THE CONTROL OF THE COORDINATOR, BUT ON A MEANS-TESTING BASIS SO THAT THE POORER YOU ARE THE MORE INCENTIVE YOU HAVE TO REQUEST IT. SO THE POOR SAP WHO BECOMES AN EVALUATOR, OR SPECIAL MASTER, OR PARENTING COORDINATOR GETS ALL HIS/HER TRAINING, THEN IS TOLD WHAT HE OR SHE CAN CHARGE BY A COURT THAT WILL HAVE EVERY INCENTIVE TO ORDER A CUSTODY EVALUATION AND THUS SET A FEE AT WHAT THE COURT FEELS THE OTHER PARTY CAN PAY, NOT SHOULD PAY. DO YOU REALIZE THAT THIS KIND OF SYSTEM DISCOURAGES EXCELLENCE AND ENCOURAGES PEOPLE SERVING IN THESE ROLES TO DO AS LITTLE AS POSSIBLE TO GET QUALIFIED AND TO PERFORM THE SERVICE? COULD THIS BE READ AND APPLIED TO MEAN THAT A PARENTING COORDINATOR MAY BE STUCK IN THIS JOB IF THE COURT SO ORDERS, EVEN IF THE COORDINATOR DOESN’T WANT TO KEEP DOING THE JOB (FOR PEANUTS, ON THAT SILLY SLIDING SCALE)? DOES THE PARENT COORDINATOR SET HIS OWN FEES, OR DOES THE COURT DETERMINE THEM AFTER THE SERVICES ARE RENDERED? |
Mercifully, H.B. 169 did not pass, but anyone who follows the doings of the legislature and Judicial Council must concede that the subjects covered in H.B. 169 will soon rear their collective heads again. May I suggest an alternative to additional regulation in this area?
The thinking behind H.B. 169 is well-intentioned for the most-part, but wrongheaded. The point should not be to make it harder to become a custody evaluator, but easier. Let the cream rise by letting virtually anyone who’s not an obvious shyster be a custody evaluator. Impose some minimal qualifications (no shysters), but then let the market thin the herd. Those in the pool of evaluators who have poor to no qualifications, make bad judgments, and/or generally do a lousy job will soon be exposed by the consumers of their services, word will get out, and the market will weed them out, eliminating the bad and rewarding the good evaluators. Minimal regulation at the administrative/legislative level will spur competition, keep costs down, reward innovation and result in the best method(s) for custody evaluations being conducted to be self-evident.
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