Custody evaluation (also known as "parenting evaluation") is a legal process, in which a court-appointed mental health expert, evaluates a family and makes a recommendation to the court for custody, visitation and/or a parenting plan. When performing the custody evaluation, the evaluator is expected to act in the child's best interests.
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Concepts
If the custody issue is not settled in the pre-trial procedures, and the parents have serious concerns about each other's ability to parent the children involved, a child custody evaluation may be appointed by the court, especially for the high-conflict cases. Many states now have laws in their statues that regulate the custody evaluator appointment and procedures.
The Court can order either a full or a focused evaluation. Psychological testing is also sometimes ordered. A "full evaluation, investigation, or assessment" is a comprehensive examination of the health, safety, welfare, and best interest of the child. A full evaluation typically requires about 15–20 hours of the evaluator's time. A "focused" evaluation " is an examination of the best interest of the child that is limited by court order in either time or scope. The partial or focused evaluation requires about 12–18 hours of investigation, interviews and report preparation. Evaluation cost is normally established by the evaluator, but the parents can split the charges according to their court order.
American Psychological Association publishes guidelines for evaluators. Also, Association of Family and Conciliation Courts publish guidelines which apply to the Custody Evaluators.
Comparison with regular court procedures
There are significant differences between custody evaluation and a regular court procedure, such as:
Controversy
The custody evaluation process does not comply with many due process rules. However, a judge can base his/her decision on the final report of the Evaluator. This creates a situation when testimony and evidence that normally would not be permitted in the court proceeding can become a basis for the court decision, in violation of the rules of civil procedure. For example: the Evaluator can base his final report on testimony that is not taken under oath; one party cannot hear and object to the other party's statements or evidence during evaluation; testimonies are not recorded; lawyers can be excluded; ex parte communications are not forbidden; the Evaluator is not required to provide full list of facts on which his decisions are based; the Evaluator's recommendations can be based on guess and personal feelings; etc. All this may infringe the legal right of a person to the procedural due process, which is guaranteed by Fifth and Fourteenth Amendments to the United States Constitution. Also, non-compliance with due-process rules makes it very hard to object to the final evaluation report in higher appellate courts.
Many of the Evaluators are paid hourly, so this may potentially create a conflict of interest, because the evaluator may financially benefit from prolonging the evaluation unnecessary. Even when the evaluator is paid a fixed amount, he/she can order additional evaluations or proceedings to financially benefit from, and the client would be afraid to object because the evaluator can give a bad evaluation in return. For example, there is a possible conflict of interests when same psychologist provides custody evaluation and later recommends to appoint himself or his office partner into the parenting coordinator role, so laws in some states and AFCC guidelines explicitly prohibit this practice. However, there is no legal prohibition for it in most states, so it is not illegal there.
Since the custody evaluators are not lawyers, they sometime can enter legal mistakes into the recommendations, for example, there were some cases when the orders drafted based on the evaluator's recommendation were missing mandatory state requirement to set forth the minimum amount and access of parenting time for noncustodial parent, which is normally required by state laws.