Child custody is a very important issue to divorcing parents. Knowing how to prepare for a child custody evaluation can make a difference for you and your child(ren).
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Hosted by: Dan Couvrette, CEO, Divorce Magazine Guest speaker: Steven A. Mindel, Family Law Attorney and a Certified Family Law Specialist*. Steven A. Mindel, a Certified Family Law Specialist* since 1998, is the Managing Partner of Feinberg Mindel Brandt & Klein LLP, a 15 attorney firm that concentrates in the areas of Family Law, Estate Planning, Probate and Trust Administration. Mr. Mindel graduated Magna Cum Laude from UCLA in 1981 and from the USC Law Center in 1985. He has an AV rating with Martindale Hubbell. For the last three years, Mr. Mindel has been named one of Southern California's Top 100 lawyers and has been recognized as a Super Lawyer by Los Angeles Magazine since 2004. Many television and radio news programs such as Good Day LA, Good Morning America, Entertainment Tonight, CNN Prime News, AP Television, E! News, CBS 2 News, NBC 4 News, KTLA 5 News, ABC 7 News and KCAL 9 News, NPR and The Michael Eric Dyson Show, call on Mr. Mindel to give expert legal commentary.
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Steve Mindel: Well, the very first thing is that judges want to know a lot of things about child custody arrangements, and in order to get that information they have to get it in a form that we call admissible evidence. And some things aren't admissible -- and this is pretty much the same through all the states. For example, there are small variations to the hearsay exceptions for each state, but essentially what parents want to do is they want to testify, they want to get in front of a judge and say, well my child wants to be with mom or my child wants to be with dad, or when my child was with dad he told me that he saw dad do this or he saw mom do this. What's happening is they're trying to get admitted into court something that happened outside of the courtroom and that’s hearsay. And so in order to get that information into court, we have to get some kind of a format to bring it in, and how we do that is we have a child custody evaluator speak to the child, speak to the parents, and then prepare us a report. And within that report they're allowed to utilize hearsay to make recommendations to the court. So does everybody need a child custody evaluation, or is it only in special cases that people need it? Steve Mindel: Well see, that's a tough issue to answer and that's what we're going to talk about. I think most of questions today in various forms is: Do I really need to have a child custody evaluation? You know, the big issue is going to be what is the information that I want to get in front of a judge, and is there an easy way to get that information in front of a judge -- or do I need to have some expert come before a judge and testify as to things that would normally be hearsay. Right. Okay. So assume that the parties have a stipulation, and maybe you can explain what a stipulation is first, or they've been ordered by the court to attend a child custody evaluation, what do the child custody evaluators expect from the parents during the interview process? Steve Mindel: Well, what they're going to be looking for primarily is honesty from the child custody evaluators. The big thing that child custody evaluators want parents to do is to present themselves honestly and efficiently. They want the parents to be efficient for the child custody evaluators, because remember, they're professionals. So they want people to show up on time. They want people to schedule their appointments quickly and efficiently and try to get back to them. Now, I practice in Los Angeles County, which is a big county and we have a lot of child custody evaluators, and things move very slowly. But I suspect that throughout the rest of the country, where there are much smaller communities, that the more efficient the parents can be with the child custody professional – who is really a mental health professional -- the faster and more efficient the process moves. So the parents would meet with the child custody evaluator, I'm assuming. What's important? Their appearance and how they look? Is that important at that sort of a meeting? Steve Mindel: Well I think one of the first things that the parents have to do is kind of get their head on straight about what's going to happen at that first meeting with the child custody evaluator. Okay. Steve Mindel: And there’s a couple ways that they get their head on straight about that. The first way is that their attorney will usually know the child custody evaluator because they've done child custody evaluations with that evaluator, and hopefully they'll have a little insight as to how they're going to handle the process. And generally, what's going to happen is that the parents have to get themselves organized for the first meeting. So to the extent that there's an issue with maybe the child not doing homework when the child is with the other parent, and maybe that's one of the key issues that want brought to the attention of the judge. They're going to have to bring those kind of materials to the child custody evaluator to review. Homework assignments that are late, report cards that are showing that the child is late. Maybe the issue might be that mom or dad didn't bring the child home for a Christmas vacation timely, so maybe you're bringing airplane tickets or emails between the parties. So you have to get all of your records together, and you have to know very carefully what it is that you want the child custody evaluator to be looking at. And then you have to bring the child custody evaluator those materials for the custody evaluator to review. And at that time, do you bring the child along to this evaluation as well? Or how does that happen? What's the process there? Steve Mindel: Well, the first thing that happens is there's contact between the parents and the child custody evaluator, or the child custody evaluator's staff. You know, most of these people are small practitioners. They're MFCCs or MFTs or, which is marriage and family counselors or marriage and family therapists, or sometimes they're psychiatrists or psychologists. And what happens is, firstly, the parents have to make contact with that individual to schedule an appointment. And when they schedule the appointment, there's going to be several different types of appointments that are going to be made. The first may be that the therapist wants to meet with the parent individually to find out what's the parent's goal. Right. Steve Mindel: So why are they there? Because whether or not you're the parent that was asking for the child custody evaluation or the parent who wasn't asking for it, you have a goal when you go to that meeting. Your goal is to get more time with your child, less time for the other parent, maybe change the school the child goes to, and so you have a goal. So the therapists generally want to meet with each parent individually to find out what their goals are, and to kind of hear their side of the story. Then therapists schedule additional visits, and those visits could be a visit to go to the party's home, could be a visit to watch the parent interact with the child, or could be a visit at the child's school. And so once the therapist knows the goal, the therapist will kind of design a plan for how they're going to get the information to make a recommendation. So, I, I know this is going to sound stupid, but I'm assuming that your home better be in good shape when the child custody evaluator comes to visit you in the home. Your child has got to look the best they can possibly look if you want to do the best job to promote yourself. Is that correct? Steve Mindel: Well, I think some of the most important questions that we get in our office deal with what happens with people's living arrangements. You know, one of the things that parents are always concerned about is, "Well, what does my home have to look like?" And obviously a home that's disheveled and has got chemicals out and is dangerous to a child is not a particularly good environment for the children. But generally what child custody evaluators are looking for is a clean home, efficient home for the parents and the child or children, and that the children have adequate amount of space in the home and so on and so forth. So the, the thing that I always advise my clients is to make an inventory of your house. Go through your home and make sure that your home looks efficient for your child. That it's set up to accept the child. If your children are in middle school and high school, is there the appropriate place for them to study with adequate ventilation and good lighting and so on and so forth? Is it a good environment? Right. And so how do you go about explaining the process to your children? Because they're going to be interviewed, I guess, by the evaluator. What do you tell them to prepare them for this sort of thing? Steve Mindel: Well, there's a couple things that are going to happen. The first one is, we're always afraid that one parent is going to coach the children and, as we call it, “paint” the child custody evaluation. And so the very first thing that generally happens is the attorneys in court will argue with the judge about what should the children be told before the child custody evaluation. And judges, a lot of times, will have their own opinion as to how the children should be told, and the judge may just tell the parties right there on the spot: "This is how I want the children told." Absent that, one of the things that I strongly recommend is that the parents speak with another child psychologist or psychiatrist about what's the most efficient way to talk to the children about this process. Because the one thing that you don't want, is you don't want a scared child going to a child custody evaluation. And so it's very important that the child be adequately prepared for what's going to happen. But on the other hand, you don't want them over-prepared --because if they're over-prepared, the child custody evaluator might believe that you're trying topaint the evaluation process, and that might not look good for one parent or the other. Right. I get a sense from what you're saying that having an orderly plan for your children, and that there's some discipline in how you're taking care of your children, will help if you're an orderly type of person. But, you know, children are loved by both parents, and that may not come through for everybody - that they have an orderly lifestyle, but nevertheless see that they need both of their parents. How does an evaluator assess that sort of thing? Is that just based on their experience, and they can sense that and they can see that, that maybe it's not the best living condition? How do they juggle that sort of contradiction? Steve Mindel: Well, I think the bottom line is that evaluators are people too. Right. Steve Mindel: And for the most part, they're psychologists, psychiatrists -- they're mental health professionals. And they're looking for a healthy environment for children. They're not necessarily looking for the most efficient environment. Like, let's say for instance, we all read in the newspaper about parents whose children are concert pianists at the age of 11, and they're playing in front of some major opera. Well, I don't think the child custody evaluator is looking for you to be getting the maximum that you can get out of your children, or having the most efficient methodology for getting your children through their day. I think what they're looking for is a loving, warm environment for the children. Now, a classic example would be an artist who's married to an engineer. The engineer has all the toothpaste with the little caps on it, and every cup is in the right space in the cabinet, and every toy is put away at the end of the night. And the artist, well sometimes the toothpaste cap is on the toothpaste; sometimes it's not. The toys are rarely stacked up neatly in the box, and not ever cup has a place in the cabinet. I think we have to trust that child custody evaluators are sensitive enough that they understand the differences in people, but clearly if there was an open gasoline can in the center of the room because the artist was doing something with gasoline, cleaning paint fluids or something, and was leaving it there for days and there was a child of 3 or 4 years old, that would not go well for that particular client. Likewise, with the engineer, if he left his, oh I don't know, whatever you call those little knives on the counter, that also wouldn't look very good for that person. So the child custody evaluator's come to the home, they've met with the parents, they've met with the child, they've gathered all their information together. What happens then? And do both sides get to see the information, or how does that work? Steve Mindel: Well, that, that's an important issue. Each state is slightly different. What happens is that the child custody evaluation report is prepared by the child custody evaluator, and in the United States we have the right to cross-examine our accusers. We have open trials. And so what will happen is the evaluator will come to court and bring the report. Many times, the parties stipulate that the report just comes into evidence without the child custody evaluator being there. And at some point the evaluation will be approved by the court as official evidence, and then the court will review the child custody evaluation report, and both parties would have an opportunity to cross-examine the evaluator. But virtually everything that the child custody evaluator comes across during the course of the evaluation is commented on by the child custody evaluator. It doesn't necessarily mean that it was important to the child custody evaluator. The child custody evaluator just wants to make sure that both parents realize that they saw whatever it is that they wanted to see. Like, for instance, if the issue was that the child is getting Cs in mathematics, and one parent believes the child should be getting better grades than Cs, doesn't believe the child's performing up to speed and believes that the child would do better if the other parent was to do mathematics homework with the child every night, that the child is with that parent. Right. Steve Mindel: They may want to introduce into to the child custody evaluator copies of the homework assignments when the other parent's there. And you could see the homework assignments are either poorly done or not done at all. And the child custody evaluator may or may not find that important. Let's say the child custody evaluator doesn't find that important for whatever reason. They still might comment that, "When I met with the mom, she showed me copies of all of the child's homework and during the time that child was with the mom, the homework was done efficiently on time and the child got good grades. During the time that the child was with the dad, the homework wasn't done properly and wasn't done efficiently, and the child got poor grades." And the child custody evaluator may comment on that in the report, but ultimately may not find that that was very helpful in deciding which parent should have time with this child during particular times of the day. Right. Steve Mindel: But they'll always comment on it, because they want to make sure that the parents realize that they saw it. Because if they don't comment on it, then the parent will feel like they weren't heard, and there's nothing worse than a litigant that doesn't feel heard. I've been through a divorce and I know how challenging it is. So if you're having issues with your soon-to-be ex spouse about who's the better parent, can either of you order a child custody evaluation during the divorce process or after the divorce process, or after you've got your divorce decree? Is that possible to do it even after the divorce decree? Steve Mindel: Family law is an interesting kind of law. Unlike, let's say, personal injury, where if you get in a car accident and you're injured and then you sue the driver of the other car and when the settlement agreement or the court or the jury makes an order, the case is finished at that point. It's all done. Whatever you're ordered to pay, you're ordered to pay, and you never hear from or see the other side ever again. Right. Steve Mindel: Family law when you have children it doesn't work that way. Because parenting plans – I like to, as opposed to calling it custody, I like to call it parenting plan. Right. Steve Mindel: It seems more, a little bit more rational and less litigious. Anyway, parenting plans are always open for review by the courts. Just like child support. And so at any given point in time, there may be a child custody evaluation, and it's not unusual especially with young children. If you have a divorce when a child is 1 or 2 years old, it wouldn't be unusual for the parents to say, "Okay, we're not going to do a child custody evaluation now," because after all, just think, what would the child custody evaluator look at? The child's not in school so there are no grades. The child's not walking, so you know, there's not going to be a lot of play interaction between the parents and the child. The child can't really speak yet or communicate effectively, so you're not going to get any information about what the child's preferences are. So a lot of times, parents with young children won't get a child custody evaluation. As the child gets older, maybe the child is starting to enter kindergarten and one parent lives on one side of town and the other parent lives on the other side of town. Well, unless the parents are willing to put the child in school in the middle of town, usually you're going to have some dispute over where the child goes to school. And many times, the judges will say, "Gee, both parents seem like they're very nice parents to me. I can't really make a decision without more information so I'm going to order a child custody evaluation to give a recommendation to me as to whether or not the child should go to school on mom's side of town or go to school on dad's side." And then the child custody evaluator doesn't make a decision. The child custody evaluator makes a recommendation and the judge makes a decision. And who, by the way, pays for the child custody evaluation? Steve Mindel: Well that is always the million-dollar question. First thing is, how much do these things cost? I mean, it's like a really crazy situation. Anybody who’s listening right now who has been in a child custody evaluation previously will tell you that the child custody evaluators quote you one price in the beginning, and then as the child custody evaluation progresses, the parents come up with more and more issues to be reviewed by the child custody evaluator, which makes the cost of the evaluation go up. Sounds like home renovation. Steve Mindel: It's exactly like home renovations. As – It's always bigger. Steve Mindel: Yeah, it's always those three favorite words. But if you kind of do what you're supposed to do, which is tell the judge what you want the child custody evaluator to make recommendations on, and then you go to the child custody evaluator and you tell them this is the only issues we want you to make recommendations on, they'll usually come in very close to their estimate. But in big cities, child custody evaluations run anywhere from $3,000 to $10,000 in a case. And that would be like Los Angeles or Chicago or Detroit, and New York. In smaller cities, your child custody evaluations are going to be much less, because the cost per hour for the evaluators is generally significantly lower. So you might have evaluations costing $2,000 to $6,000. And then the question's going to be, how are you going to allocate that cost between two parents who before they got divorced barely had enough money to live on, and now that they're maintaining two separate households, clearly don't have enough money. So where does that $6,000 or $10,000 or $3,000 come from? Right. Steve Mindel: Because the child custody evaluators rarely work on payment plans. They don't usually take $500 a month. They usually take half up front and the balance on delivery. I see. Steve Mindel: And so the question always is, how do you allocate this? Most judges tend to allocate them pretty equally between the parties, unless one party is really advantaged – i.e. one party's got a lot of money, they've got a big job, they make a lot of money. The court may order them to advance the fee and then later on maybe reallocate it between them. But generally the courts try to be fair about it, and will kind of allocate the fees equally between them. Given that you've been involved in quite a few of the cases that have had an evaluation, are you ever surprised or shocked about the results of an evaluation, when you thought it was going to go one way for one parent or the other? Or is it pretty predictable by experienced family lawyers like yourself? Steve Mindel: My experience is, regardless of whether or not it's a child custody evaluation or trial, the results are always unpredictable. It’s unlike our jury system where you have 12 people that are reviewing the work that you perform. Like, in other words, let's say it's a personal injury case and there's a jury of your 12 peers who are going to take a look at all of the evidence, and then they're going to deliberate and they're going to argue the pros and cons of what's being requested. In family law with our trials and with our child custody evaluations, you generally have only one decision-maker. And because of that, sometimes you can get unpredictable results. And that's why most people prefer to try some form of mediation or some way to settle their case, because the worst solution that they come out with is generally better than the best solution that some third party comes up with. Right. Steve Mindel: But notwithstanding that, you know, here are some anecdotal situations that I've been involved with. Like once I represented the absolute “absent-minded professor.” The guy could not find his car to save his life. He couldn't find his car keys, he would lose his cell phone. You know, everything in his life was always missing. Right. Steve Mindel: And his children were not much better it turned out. They had very similar problems and the whole family was dealing with a therapist or two that was assisting them to try to get better organized essentially, and try to remember what they did with things. And so when we went to the child custody evaluation, mom, who is your absolutely stellar person, graduated magna cum laude from her college and, you know, was the best of the best of the best, and everything was organized, and mom always knew where everything was. And I just figured that mom hands down would be selected by the child custody evaluator to be the primary custodial parent, and she wanted to move outside of the State of California. And I thought, well, this is going to be a really short child custody evaluation, because I represented the absent-minded professor against the infinitely more-qualified mom who wanted to leave. Right. Steve Mindel: But it turned out that the child custody evaluator wasn't so concerned with the fact that my client was the absent-minded professor or that mom was so well prepared in her life. What the child custody evaluator was focused on was what would be the impact on these children of moving them out of their familiar environment. And the child custody evaluator spoke extensively with the psychologists who were working with the family, and determined that it would be really harmful for these particular children with this particular problem to move from an environment that they were really familiar with, without some more significant therapy. And the recommendation that came back was to deny the move. And I was just stunned by that, even though it was my client that actually won, and my client was dancing in the hallways that we won. And it just goes to show you that what we think is the important issue, the mental health professionals who are much better trained at these things, oftentimes see things that we don't see. And as a result of that, before my clients ever request a child custody evaluation, I always recommend that they meet with a mental health professional who regularly and routinely does child custody evaluations, and talk to them about what the likely outcome by a child custody evaluator might be, and to take a really good, hard look at their own life to see if maybe they're being overcritical of the other spouse. Right. Well, we're gonna wrap up, Steve. Maybe you can answer my last question. How long does this process take? Steve Mindel: Well, as I said before, in Los Angeles County where we are the land of fruits and nuts, it could take anywhere from six weeks, to 16 or 18 weeks. So if you're planning on moving out of state, or you're going do something that needs significant testimony, then I always recommend that you start the process at least six to seven months in advance. But many times the, you know, counties will do smaller psychological reviews and could be as short as a week or two weeks, especially in an emergency situation.Back To Top