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BY: Maury D. Beaulier
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
For more specific information about Hennepin County's process, go to:
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 abuse.
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
“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
- 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 tha