By Maury D. Beaulier, Esq.
In most counties when there
is a custody dispute, the Court appoints a custody evaluator. That evaluator may
work for Court Services or may be a private individual or attorney called a
Guardian Ad Litem. In a “Custody Evaluation” an evaluator meets with the parties
and evaluates the custody issues based on the factors for determining custody
that are spelled out by Minnesota Statutes which are appended at the end of this
article. Once the custody evaluation is complete the evaluator submits a report
to the Court which will recommend a custody and visitation schedule that the
evaluator believes is in the child’s best interests.
This report is a critical element of your case. Although
custody studies may be challenged in court, many Judge’s defer to the
recommendations of the evaluator because, unlike the parties, they are deemed to
be an independent witness without any personal Interest in the outcome. As a
result how you relate your case to the evaluator is very important.
TWO TYPES OF CUSTODY
As you may know, there are two types of custody: Legal and Physical.
Legal custody refers to the right of the parents to participate
in important decisions in the lives of their child(ren). This specifically
includes decisions related to schooling, medical care, religion,
extra-curricular activities and other important events. There is a very strong
presumption under Minnesota law that these responsibilities should be shared by
the parties. The only time that legal custody is not shared is when the parties
demonstrate a complete inability to communicate or where there has been domestic
Physical custody is what most people think of when they hear
the term custody. It refers to the primary physical residence where the child
will live. There is a presumption under Minnesota law favoring sole physical
custody to one parent or the other. This presumption is based upon psychological
studies that have indicated that children respond better when their physical
environment is consistent.
STANDARD FOR GAINING CUSTODY
When custody is being determined for the first time, the Court must determine
what is in the child(ren)’s best interests. To determine what is in the
child(ren)’s best interest, the court weights thirteen factors that are set out
in Minnesota Statutes (See attachment to this letter). As you may note, the
factor’s are less than clear. As a result, the way you present your case to the
custody evaluator is important.
Once custody has been determined and a change of custody is requested, the
burden on the party seeking to change custody is much higher. The Court must
find that there has been endangerment OR that the child has
been integrated into the household of the non-custodial parent by agreement of
the parties AND that the benefit of the change outweighs the difficulties
created by the change.
WORKING WITH CUSTODY EVALUATORS
In most cases, a custody study will be carried out by county workers or an
independent Guardian Ad Litem. The custody evaluator will create a report
regarding what he/she believes is in the child(ren)’s best interests.
“Best interests” of the child are magic words in custody proceedings
since that is the standard that is used to make custody decisions. What is in
the best interests of the child is determined by looking at thirteen factor
specified by Minnesota Statutes. You will find those factors and the statute a
the end of this article.
The custody evaluator often has broad power to require psychological testing,
chemical dependency evaluations and urinalysis tests. How you interact with the
custody evaluator may be a critical element of your custody case.
- Custody evaluators will oftentimes make you believe that they agree with
your side of the case. This is done so that you drop your guard. Never
assume that the evaluator’s report will favor your position.
- Custody evaluators are also people. That means they react to
personalities. You are best able to present your case to an evaluator if you
appear open and honest.
- Do not argue with the evaluator. Make eye contact and
listen when they speak. This establishes a connection. It may help to nod
your head as they speak even if you disagree with what they are saying. When
you disagree, tell them “I see your point, but...” or agree first “I agree,
but would you consider this to be important....”
- The custody evaluator does not care about good guys and bad guys. The
evaluator cares about what is in the “best interests of the child(ren).”
To relate your case to the evaluator, you must speak his/her
language. Your statements must relate in some way to what is best for the
child not the parent. For example, the statement, “my husband drinks too
much”, is incomplete. It does not relate how the drinking affects the
child(ren). Always relate how the conduct affects the child(ren). A better
statement would be:
“My husband drinks too much. Because of that, he is rarely home and
when he is, he is:.... abusive....spends little quality time with the
children....is unable to help the kids with their homework....”
- Provide the evaluator with the documents supporting your statements.
- Provide the evaluator with the names of collateral contacts, people who
are aware of your strong points as a parent and the other party’s weak
points. (It is usually better not to include relatives as part of your
contacts since they may have a bias).
- ALWAYS ASSUME when you go to court or visit a custody
evaluator that you may be ordered to provide a urine sample for testing to
determine if you have used drugs or alcohol.
CUSTODY STUDY ELEMENTS
Although each custody evaluator may have a slightly different approach to
performing custody evaluations there are some things you should expect :
- Initial Interview with Evaluator. At the initial interview, the
evaluator will discuss at length the past history of care with the child.
The evaluator will attempt to determine who was the primary caretaker.
BE PREPARED! At the initial interview arrive prepared with a
chronology of events clearly set out.
- Home Visits. The evaluator will make at least one home visit to
watch you interact with your child(ren). The evaluator is watching to see:
- Whether you actively play with and interact with your child;
- Whether you set appropriate boundaries for the child and whether the
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