In high conflict custody cases, it is common to have a forensic Ph.D. level custody evaluator conduct an evaluation and make recommendations to the court as to who should have custody in the child’s best interests. These evaluations result in a written report. However, no professional is accurate all of the time, and occasionally an errant report issues. In short, we all make mistakes—even professionals. If you get an adverse custody evaluation in your case, this blog is focused on potential “fixes” for a custody evaluation that we have tried over time.
Review of the custody evaluation by another expert. It is somewhat common to have another professional review a custody evaluation and sometimes underlying data and reach a different result. In these cases, you have competing experts to relay to the court where the inconsistencies are and what decision it should make in the child’s best interest. The key is to get a rebuttal expert determined as soon as possible if there is an impending trial date or the request may be denied. Sometimes there is an error in reviewing psychological testing or failing to conduct a collateral interview. In any event, this is a tool to address a negative custody evaluation.
The court does not have to follow a custody evaluation. Indiana trial court judges are given wide discretion to determine what custody and parenting time rights are in a child’s best interests. Some judges—particularly those who are very experienced—do not necessarily find custody evaluations that helpful because they have gained so much wisdom in deciding cases over the years on the bench. It is important to know your judge. Also, if there is an obvious hole in the custody evaluator’s rationale, then it is possible a lay witness or exhibits would point out the deficiency in the evidence. This is where the work of skilled domestic counsel comes into play. Is there a witness or piece of evidence in your case that can bridge the gap and establish notwithstanding the expert’s recommendations, it is clear the physical custody (or legal custody) should be sole in the child’s best interests consistent with your position?
Another custody evaluation. While not common, it is possible to have a second custody evaluation in a case or more. Dixon & Moseley, P.C. counsel have had as many as four (4) custody experts in any given case depending on the facts and circumstances of the case. Where they draw different conclusions, it provides a great deal of potential in a trial to establish why one report is in the child’s best interests and should be followed. The two keys in this scenario are who is going to pay for the evaluations and the trial court’s willingness to appoint multiple evaluators. This is where a soundly crafted motion is key to file to demonstrate to the court why another evaluation is needed.
Specialized expert to rebut part of a custody evaluation. Domestic law is really nothing more than a set of tools in the Divorce Act to allow the judge to act in the children’s best interests. For this reason, judges have wide discretion and can allow any number of other experts to participate in a case. So, for instance, if a custody evaluation’s recommendation is based on the allegation that a parent (who is not recommended to have custody) has an anger or substance abuse issues, then it may be necessary to utilize an expert in these fields to address this is not the case. Thus, the entire basis of the custody evaluation is called into question.
Ultimately, in high-conflict custody litigation—including those with custody evaluations—there are many tools to address adverse reports or litigation if you have skilled counsel to guide you through the process. We hope this blog on adverse custody evaluations is helpful. It is written by advocates at Dixon & Moseley, P.C. who handle high-conflict custody cases throughout the State. This blog was written by attorneys at Dixon & Moseley, P.C. for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.