Season 3 Episode 6: Evaluations in Child Custody Cases

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 6 of Season 3 of “A Year and a Day.” I’m your host, Jaime Davis. Today, I’ll be speaking via Skype with my colleague Melissa Essick. Melissa is a board certified family law specialist and has practiced almost exclusively in the area of family law since 2004. Melissa is also professionally trained as a mediator in all family law matters and has been certified as a family financial mediator by the North Carolina dispute resolution commission. Melissa and I will be discussing the different types of evaluations you may encounter in your child custody case, including custody evaluations, psychological evaluations and substance abuse assessments. Here’s our call.

Hi Melissa. Thanks for joining me today.

Melissa J. Essick: Thanks for having me Jaime.

Jaime Davis: So in prior podcast episodes, you and I have discussed tips for navigating custody cases and how to handle the first holidays following separation. Today, I thought it would be helpful for us to talk about the various types of evaluations you might encounter if you are involved in a child custody case. The first type of evaluation you may hear about in connection with your child custody case is a custody evaluation. Melissa, what is a custody evaluation?

Melissa J. Essick: A custody evaluation is a process in which a mental health professional, it’s usually as a psychologist, evaluates you, your child, um, and the other parent, and the evaluate, the evaluator will produce a report that is then used by the court in order to determine, um, a schedule or custody arrangement that’s in the best interest of the children.

Jaime Davis: In your experience, what does a custody evaluation typically include?

Melissa J. Essick: Well it’s pretty all encompassing, um, and it usually takes some time. So I will say to the listeners to, um, be prepared to, uh, for this to be somewhat of a lengthy process, just because of all that it’s involved. Um, usually they will start off by interviewing the parents, um, separately. And that interview usually can, you know, can last for an hour or two. The evaluator could ask that the parents come to their office. Sometimes the evaluator actually want to conduct the interview at the parents’ home.

Um, after they evaluate the parents, they’re also going to evaluate the children and that could be done, um, in numerous locations. And it certainly can be more than one meeting with the children. Um, and then they’re going to also, uh, evaluate and interview collateral witnesses, and that can be friends, family. It could be other professionals such as therapists of the children, doctors, teachers. Um, and then also they will look at any psychological evaluations that the parents may have had or any information from the therapist, children.

Jaime Davis: Melissa you’re right. Custody evaluations can be very involved and they do take a long time. In my experience, custody evaluators typically have different processes for how they go about gathering the information. Um, but in general, the evaluator will give you a statement of understanding or some sort of summary that explains how their particular process for performing the evaluation is going to work.

They may explain to you how confidentiality will work in your communications with them, because you will find that it is much different, um, than if you were communicating with your therapist or your lawyer. Um, the custody evaluator is going to be using the information you give them to create a report, and that means necessarily sharing it with other people other than, than just you.

Um, after that initial intake type process, I think that in a lot of cases, the evaluator will actually give you a questionnaire, um, get your written answers to various questions about you, your upbringing, your spouse’s upbringing, to the extent you know about it, your children, um, any issues they may be having. And so all of that, you know, can take place before they even start interviewing you or your spouse or your children.

Melissa in your experience, how does the evaluator know what questions he or she is trying to answer, um, in the evaluation?

Melissa J. Essick: A lot of the times when the judge appoints a custody evaluator, or the parties consent to a custody evaluation, there is an order that’s prepared and in the order, you can actually outline and define the scope of what you’re asking the custody evaluator to do. Um, for example, you can ask for things as specific as you know, what is the recommendation of the evaluator as far as a schedule? What is the recommendation of the evaluator as far as communication between the parties? Does they evaluator or make any recommendations regarding the mental health of a one or the other party and would they recommend therapy?

Um, you can make it as detailed as you want. If you’re, if you’re preparing a consent order and the two parties can agree and it’s by consent, or the judge based on the information that they want to know, or they feel like would be helpful for the court and considering, you know, what is in the children’s best interest, the judge will then outline what they want the custody evaluator to do.

Jaime Davis: Yeah, the order appointing the custody evaluator is critical. Um, and it’s important that you work with your lawyer to make sure that the questions you want answered or the issues you want considered are included in that order, because the order is basically a roadmap for the custody evaluator. It’s giving the evaluator their instructions for what the court wants them to do in a particular custody case.

Um, in addition to the questions that you mentioned could be answered, I’ve also seen orders where, um, the custody evaluator may be asked to give an opinion about whether either side is engaging in parental alienation, the strengths and weaknesses of each parent, an effective way for the parties to co-parent in a way that will minimize negative effects on the children.

And so these orders are very case specific, and can and should be tailored to the particular custody case, um, at issue, because at the end of the day, what you want to end up with is a report that is hopefully going to help the parties resolve their differences. Um, the goal is that enough information is given to the custody evaluator that he or she is able to make a recommendation that both parties are going to, to live with right? Um, they’re going to agree with what the evaluator says because they have faith in the process and they know that the evaluator has all of the information they need.

Melissa J. Essick: Right. And, and in addition to that, um, we talked about that, making a recommendation with regard to what schedule would be best, but we also, I just don’t want to leave this, um, for our listeners, they should also know they can make a recommendation with regard to legal custody. And legal custody is who makes the, uh, important decisions for the children, such as medical decisions or educational decisions. Um, and so you can specifically ask as one of the questions that they evaluator make a recommendation on, um, whether or not joint legal custody would be in the children’s best interest or whether or not one parent would be better suited to making those decisions for the child.

Jaime Davis: Yeah. That’s a really great point. Um, a lot of times when folks are thinking about child custody, you know, they really are just thinking about that physical schedule and where the children are gonna live when, but one of the most important issues in a custody case is legal custody. You know, which parent, or both parents, are going to be making these major decisions that affect the welfare of their children. Um, and to think that a custody evaluator can come in and help with that, I think is really important.

Melissa J. Essick: And a lot of the times when we see custody evaluations, it’s normally more high conflict cases. And so there are occasions in which two parents, you know, where there is high conflict, where two parents just aren’t going to be able to make decisions together. And in that situation, I think it is helpful for a judge to know from their evaluator who the evaluator thinks would be best suited to make those decisions.

Jaime Davis: So if you decide that you want to get a child custody evaluation, um, I’m sure cost is gonna be an issue for you. Melissa, how much does a custody evaluation typically cost?

Melissa J. Essick: I have really seen a wide range. I think it really depends on the valuator and depends on the amount of effort and time that the evaluator spends. Um, you know, I, I think, uh, an average amount would be around $10,000. What do you think Jaime?

Jaime Davis: Yeah, that’s what I was going to say too. I mean, I’ve seen them range from 7,500 on up, and they can get very, very expensive because you’re right, um, it depends on the amount of time, you know, if they’re charging by the hour or if they are having to travel. For home visits, um, you know, to visit with the parents and the children and, and meet the kids and all those sorts of things it can add up for sure.

Um, but I think in the right case, a custody evaluation can be invaluable, you know. If you think about it, normally, when you are taking your custody case to court, it will just be you and your child’s other parent you’ll be testifying about the facts of your case. And each of you will be talking about what you think is in the best interest of the children. You may have some other witnesses, maybe, you know, there’s a therapist who sees your children and maybe that person testifies. Maybe there are some friends or family members who have knowledge of how you parent your children, and maybe you want them to come talk about your custody case and what’s in the best interest of your kids.

But if you really want the court to have a good source, a solid source of information, a real recommendation about what is best for your children that is coming from a professional, you know, your child’s treating therapist can’t make that recommendation. That recommendation can only come from a custody evaluator. And so for that reason, custody evaluations can be invaluable, especially in high conflict cases.

Melissa J. Essick: And I think, you know, most of the time when, whenever we have witnesses in court, whenever you call witnesses, such as, you know, maybe there’s grandparents called, or maybe it’s a friend that spends a lot of time with you and your children, the judge is going to know that those witnesses are somewhat biased.

And so I think it’s nice for the court to have a neutral party, especially, you know, someone that is trained in and is professional. Um, but someone that just doesn’t have the, the natural biases that you know, other collateral witnesses are going to have.

Jaime Davis: Yeah, that’s a great point. Um, so if you are involved in a custody case and you think that you could benefit from having a custody evaluation, how do you go about getting one?

Melissa J. Essick: Well, I briefly mentioned this earlier. There’s two different ways. One, you could file a motion with the court and ask the judge to, um, order that an evaluator be appointed. Um, the other way is if the two of you, if the two parties can agree, you can enter into a consent order by, you know, and, and that would require them, you agreeing number one and two, it would require you agreeing to the actual person.

I’ve seen cases where we can reach an agreement that we both agree that we need the custody evaluator, but we can’t find, we can’t find one that we both agree on. And so sometimes even if you consent to having an evaluation, you might need the judge to make a determination as to who the evaluator will be.

Jaime Davis: Yeah, that’s a good point. Um, just because you can agree on big picture about having the custody evaluation doesn’t mean you can agree on the detail of who that person is going to be.

Melissa J. Essick: Um, in the scope of their record, you know, the scope of what you’re asking them to determine that also might have to be something that the judge helps with.

Jaime Davis: Yeah. Also a really good point. I mean, if you’re dealing with two high conflict people that can’t agree on much of anything, um, they probably each have different ideas about what questions the evaluator needs to be answering for the court. Um, I think it’s also important to note, especially if you agree to the custody evaluation and you have a consent order, it can set forth who is paying what percentage of the fees. Likewise, a court’s order, you know, in and of itself can do that.

But when you have a consent order that is setting forth, you know, who is paying what portion of the fee, a lot of times it can be a good way to spend a little money up front, but hopefully avoid additional legal fees later on. Um, you know, $10,000 for a custody evaluation, you know, that’s a lot of money. But if you get a really good evaluation and both sides are confident that the evaluator, you know, did a good job, you may spend that money on the evaluation, but you’re going to save tens of thousands of dollars potentially in legal fees that would cost you to finish litigating your custody case. So I think it can also be, um, a good thing for that reason.

Melissa J. Essick: Absolutely. Yes. I have found that it is a custody evaluation is much less expensive than a full blown custody trial.

Jaime Davis: Yeah, absolutely. So do you have any tips for folks who may be in the beginning stages of a custody evaluation?

Melissa J. Essick: Yeah, I’ve got a couple, um, suggestions for preparing for a custody evaluation for sure. Um, the first thing I would say is be prepared. You’re going to have an initial intake meeting with the evaluator, and this is going to be the first time that the evaluator actually sees you. Um, so I would be, you know, on time, I’d be appropriately dressed, you know, be, um, honest, be competent. Um, but I would also be very careful, um, in talking negatively about the other parent or the spouse, or in some cases, just the other parent. Um, certainly it’s important for you to be prepared and raise your concerns or any co-parenting issues that you’re having or any, you know, parents thinking concerns that you have about the other parent, but it’s not a time to just, you know, bash the other parent. That’s not going to be helpful for them.

So I would go into the meeting, you know, kind of with uh, an outline as to, you know, what it is that you want to share with them.

Jaime Davis: Yeah. I think that’s a really good point. Likewise. I also don’t think it’s believable if you have no flaws yourself. Um, and so if you try to present to the evaluator in a way that you are the perfect parent and the other parent, you know, can’t do anything right, most evaluators are gonna see right through that, in my opinion.

Melissa J. Essick: Yes. Especially if they, you know, if they have any experience, absolutely I think they’ve seen that before. Um, but another key point that I would raise is, you know, make sure that you are holding the best interest of your child above all else. You know, showing that your child is a priority, that that is the most important concern of yours and that your concern is not just winning a game because sometimes it can come across that way. And so I think if you always aim to put your child as the priority and really go at it from the perspective of, you know, I want you to help us determine what’s best for our children, because that’s our number one goal, not to kind of win this game.

Jaime Davis: Yeah. That’s a really good point. Um, it should not be about you or your child’s other parent in a custody case. It should always be about your child and what is in the best interest of your child. Um, and if you are serious about figuring that out and you’ve decided, you know, a custody evaluation is the way to go, and you said this a minute ago, Melissa, like put your best foot forward, right? Like don’t reschedule your meetings with the evaluator. Don’t show up late. Don’t cancel your meetings. Like this is your opportunity to shine as a parent. You know, they’re going to likely observe you with your kids. Um, depending upon the ages of your children, you may be playing with the kids or engaging in some sort of activity. Do what you do best. Parent your children, um, interact with them, play with them. And that’s the biggest tip I have for folks who may be beginning a custody evaluation.

Melissa J. Essick: Right. Yeah I would also just, um, like to point out, make sure you cooperate with the evaluator because the evaluator is going to ask a lot of you. I mean, this is a very lengthy process, it’s very detailed and they want to get a full picture and that might be them, you know, the evaluator saying, you know, you, you mentioned some of these, some communications that you’ve had with your spouse or, you know, with mom or dad, can you get those communications to me? I think it would be helpful for me to kind of see how the two of you communicate together. If they ask you to do something, do it. And there’s a reason why they’re asking for the documents that they’re asking for or asking you to do whatever they’re asking you to do is because they think it’s important and it’s something they wouldn’t take into consideration in their report. And so just make sure you’re being cooperative.

Um, if you’re not sure what to provide or you’re not sure how much information, absolutely consult with your attorney, um, you know, your attorney can help you kind of compile either the list of questions you might want to ask the, the evaluator or compile the information that you want to share with them. Um, you know, you don’t want to bombard the evaluator certainly, but I would just make sure you say to them, you know, if there’s anything that I’ve mentioned that you think would be important or helpful, please let me know and I’ll be happy to get that information to you.

Jaime Davis: That’s also a really good point. Um, do you have any more tips for our listeners before we move on to the second type of evaluation that they might encounter in their custody case?

Melissa J. Essick: Um, I would just say, lastly, you know, there are some instances where people have opposed the evaluation. Um, you don’t want the custody evaluator to know that, so you can keep that to yourself, keep that to yourself.

Um, so even, even if you’re there and you don’t want to be there, and this is not under your choosing, you know, let’s say maybe the judge appointed them or, you know, somehow you were, you know, you ended up agreeing, but you don’t necessarily believe in the process, you really need to, you know, go into this process with an open mind.

And I think if you can focus on, like we talked about earlier, focused on your kids and focus on, you know, the goal is to have a recommendation that’s going to be, you know, in the best interest of your children. I think that’s, that’s what you need to focus on.

Jaime Davis: Yeah. Good point. It’s like saying, don’t say the quiet part out loud. Think it in your head. If you don’t want to be there, that’s fine. Um, but the evaluator certainly doesn’t need to know that

Melissa J. Essick: That’s right. You can complain to your attorney.

Jaime Davis: Absolutely. So moving on, um, another type of evaluation you might encounter during your child custody case is a psychological evaluation. We’ve been talking about custody evaluations, but now I want to switch gears and talk about psychological evaluations.

Melissa, what is a psychological evaluation?

Melissa J. Essick: A psychological evaluation is where a psychiatrist will evaluate a parent with the goal or the focus being on, typically being on their mental health.

Jaime Davis: Who performs the evaluation?

A licensed psychologist will perform the evaluation. Um, and a lot of the times the attorneys will have a list of vetted psychologists that, um, have experience conducting these types of evaluations and normally in connection with custody cases.

Jaime Davis: And what does this type of evaluation usually include?

Melissa J. Essick: Well, it can include a number of different tests. Um, I’ve seen, you know, where they will consider any, a lot of the times they’ll, they’ll reach out to the therapist if that parent or person is, um, also seeing an individual therapist, they’re going to look at any tests that they have had, um, any substance abuse testing, any personality testing, such as the MMPI.

Um, they’re going to look to see whether or not they have been previously diagnosed with any mental health disorders, such as borderline personality, narcissism, bipolar. Um, there are numerous different things that they’re going to look at and consider when making their report.

Jaime Davis: Um, in addition to performing actual tests, what other sorts of things might the evaluator do?

Melissa J. Essick: They can certainly, um, contact collateral witnesses as well. And so they have that, that right to do that. And that’s kind of what I referenced earlier about them contacting, you know, maybe the individual therapist. Um, they’re also going to look at, um, potentially look at medical history, um, because there could be, you know, medical issues that are affecting someone’s mental health.

Jaime Davis: How does a psychological evaluation differ from a custody evaluation?

Melissa J. Essick: Well, a psychological evaluation could be a part of a custody evaluation, a sub part, I guess you can say of the custody evaluation. Um, a psychological evaluation really is focused on the parent individually, um, and is not going to take into consideration, you know, the, the children. So in a psychological evaluation of the parent, they’re not going to be interviewing the children. They’re not going to be contacting collateral witnesses that might have information about the children. A psychological evaluation is really going to just be focused on that person

Jaime Davis: Right. You know, does the person being evaluated have some sort of mental health issue? And then it’ll be up to the parents and the parents lawyers to make arguments in court about how that mental health issue might affect that person’s ability to parent. I think it’s really important to remember that with a psychological evaluation, the evaluator is not going to be making a recommendation about the custody schedule.

Melissa J. Essick: Absolutely not that’s correct, but they could make us make recommendations with regard to, um, mental health treatment for that individual person. So at the end of the day, they could make our own recommendation.

If someone’s not in therapy that they seek therapy, that they maybe they start, um, you know, group therapy or maybe they do, you know, some sort of behavioral therapy, like deep DBT. Um, so they can make recommendations with regards to mental health treatment of that person. But you’re right. They’re not going to be making a recommendation with regard to custody.

Jaime Davis: So we talked about the cost of a custody evaluation. Does the cost of a psychological evaluation differ?

Melissa J. Essick: Yes greatly, just because the scope, you know, it’s, it’s a much more, I guess scaled down process. Um, normally I would say, uh, a psychological evaluation, I don’t know between $2,000 and $4,000. What do you think?

Jaime Davis: Yeah, that’s what I’ve seen recently in my experience as well.

Melissa J. Essick: Yeah. I mean, again, I think it’s going to depend on the psychiatrist or the, you know, the person that’s doing the evaluation, but somewhere between two and four, I think it’s about average.

Jaime Davis: If you want your child’s other parent to have a psychological evaluation, how do you go about getting one?

Melissa J. Essick: Similarly to the custody evaluation, you can file a motion with the court. Um, you can, in that motion, you’re going to want to make some allegations with regard to their, the person’s mental health, um, so that the judge has an understanding as to why it is that you think that it’s necessary for the court to consider a psychological, um, evaluator’s opinion.

Um, what the judge doesn’t want to see is just someone just filing this motion as a means to harass someone, because I’ve certainly seen that in some of my cases. So you want to make sure that you put enough allegations in there that the judge understands why you think it would be important for them to, you know, consider a psychological evaluation.

Jaime Davis: Yeah. And I think one thing to keep in mind is that if you ask the court to order the other party to have a psychological evaluation, nine times out of ten, the other party is going to ask that you also have a psychological evaluation. And so in a lot of cases, if somebody asks for it, both parties end up having to get one.

And so just be careful if that’s not something you want to have to undergo yourself, that you don’t ask the court to order the other person to do it.

Melissa J. Essick: You’re right. And I’ve also seen where the court will require the person that filed the motion, the person that’s requesting the psychological evaluation actually pay for the evaluation. So just understand, um, you know, sometimes the courts will say you split that 50 50. Sometimes the court will say, if they’re requiring both of you to get it, that you each pay your own, but I’ve seen um, circumstances where they say, okay, I’ll grant your motion, but you’re going to pay for it.

Jaime Davis: Very true. Very true. Do you have any tips for our listeners who might be faced with having a psychological evaluation in connection with their custody case?

Melissa J. Essick: My biggest tip would be to be honest. Um, these evaluators, most of them are highly experienced and highly trained, very smart and, and trained to kind of you know, read people. And so, you know, I have seen where clients go in thinking they can pull on over on them. It’s just not going to be the case and, and you’re not going to be credible. Um, and so just be as honest as you can about, you know, they’re going to ask you things about your relationship. They’re going to ask you things about your work and your family background, your medical history, any substance abuse issues that you might have had. And so just make sure you’re honest, um, because if you’re not it’s it’s gonna come through.

Jaime Davis: So sometimes it’s part of a psychological evaluation, and sometimes as it’s own standalone assessment, I’ve seen substance abuse assessments be conducted. Melissa, what is a substance abuse assessment?

Melissa J. Essick: Well, again, this is almost another subset that can be considered as part of the psychological evaluation and it can be considered as part of the custody evaluation. Um, but a substance abuse assessment is going to, um, determine whether or not someone has, um, uh, substance abuse, you know, whether it be alcohol, whether it be prescription drugs or illegal drugs. They’re going to be determining, um, you know, what is your history of substance use and is there an abuse that could potentially affect your ability to, um, really your judgment.

Jaime Davis: Melissa, what does the substance abuse assessment include?

Melissa J. Essick: The first step of assessment, substance abuse assessment is typically the screening process. Um, and what that is, is usually a series of questions or kind of a questionnaire where you are asked to self report. Um, as you can imagine, some of our clients don’t trust that the self-reporting is actually honest and truthful.

Um, as an alternative, you know, if you believe that your, the other parent has an issue with drugs, you may consider asking for a hair follicle test instead of a substance abuse assessment. A hair follicle test, um, can test, you know, narcotics, it can test for illegal drugs. Um, and normally with a hair follicle test, it can go back up to three to four months. So that might be a less expensive alternative option. Um, substance abuse assessments, you know, after the screening process, usually then there’s the assessment by the reporter, um, or the evaluator. And that is when they, um, you know, determine what the problem is, if there is a problem.

Jaime Davis: Yeah, that’s a really good point. Um, maybe asking the court to order drug testing of the other party is a better way to go. You know, you’ll then have a definitive result in the terms of positive or negative on a report, um, that you could use in your custody case. And if it’s less expensive, that may be the route to go.

Melissa J. Essick: Right. You know, it’s not going to test for alcohol, you know? And so if there’s an issue with alcohol being the substance that you’re concerned about, I’ve also seen where people have asked for some sort of a daily monitoring system, like Soberlink or something that can monitor, you know, the, your blood alcohol level, especially at times where you were scheduled to have the children.

So it might be something that you ask that the court order that they, you know, have some kind of monitoring system that they have to blow into and that report would get sent directly to the other parents so that other parent has assurances that you are sober and that you’re not under the influence of any sorts of drugs or alcohol.

Jaime Davis: Yeah. The technology now is amazing. Um, the things that we can request to try to keep the children safe. You know, alcohol monitoring can be really helpful in cases where alcohol abuse is suspected. And if the person is required to use the device prior to the visitation, and let’s say they blow and it’s positive for alcohol, um, you know, in some court orders, the person doesn’t have to send the child on the visit. You know, it will depend on what your court order says and your particular case, but, um, you’re right, Melissa, the alcohol monitoring can be really helpful.

So Melisssa, before we wrap up today, is there anything else that you would like to add about any of these evaluations?

Melissa J. Essick: I just like the listeners just to remember, you know, if you are in, in the situation where you’re going through a custody evaluation, understand that, that professional is simply trying to determine what’s in the best interest of your children. At the end of the day, they’re going to be, you know, using their observations and the information that you’ve given them to make a report to the judge. And the judge is going to consider those and put a lot of weight into the recommendations of the evaluator.

And so make sure that you were honest with the evaluator, make sure that you are putting your best foot forward, and make sure you really have your children’s best interest at heart. And if you can do all those things, I think that would come through. And I think that will go a long way for the evaluation.

Jaime Davis: Well, so those are excellent points. Thank you for joining me today. If any of our listeners would like to contact you, what is the best way for them to reach you?

Melissa J. Essick: They can email me at messick@divorceistough.com, or they can contact me at (919) 832-8488. And that’s my number at Gailor Hunt.

Jaime Davis: I hope you all found this episode of “A year and a Day” to be helpful. If you have any questions or comments, I would love to hear from you. You can email me at jdavis@divorceistough.com. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice, and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.