Understanding and Navigating the Custody Evaluation Process 604.10(b)

 Posted on February 07, 2024 in Family Law

In contested cases involving minor children, if mediation fails, it is possible that a clinical psychologist will be appointed by the court to conduct an investigation and prepare a report. This can be done by request of either party, or in some cases, sua sponte by the court, meaning on its own accord.  When a custody evaluation is ordered in your family law case, it’s imperative that you are fully prepared for the process, as the court will rely heavily on this expert witness in determining the issues involving your children.  

First and foremost, you should be aware of the costs associated with the evaluation. Likely the cost will be paid from marital funds or otherwise divided, most commonly equally, but sometimes in a different proportion. This will be set by the court in its’ order.  The evaluator charges at an hourly rate and some counties (DuPage and Kane) have placed a cap on fees an evaluator can charge pursuant to local rule. The cap does not include deposition costs or trial costs. To get off on the right foot with the evaluator, you should be prepared to timely pay any required retainer

Next, you should understand what the evaluation process involves and what to expect from it. The evaluation consists of interviews with both parties, interviews with the child(ren), document review, psychological testing and third party collateral contacts (including any Guardian ad litem  assigned to your case).  On rare occasion, an evaluator may do a home visit.

During the interview process, the following issues will likely be discussed for purposes of background: (1) residency including set up of house/bedrooms; (2) employment; (3) educational history; (4) child’s age and education; (5) history of child development; (6) where and under what arrangements the child is living at present; (7) previous psychological/psychiatric treatment including medications; (8) community and neighborhood ties; (9) child’s school performance, academic and otherwise; (10) mental health and life satisfaction; (11) friend/relative relationships; (12) alcohol and other substance history; (13) legal problems; (14) organizations with which the individual is involved; (15) hobbies, skills, or other interests; (16) any history of domestic violence; (17) any history of sexual assault; (18) history of prior marriages or relationships; and (19) caretaking functions each party performed during the relationship and subsequent to separation.

As it relates to interviews, you need to be aware that every action you take may impact the evaluation. For example, your attire, cancellations, arriving late, demeanor to staff, and your interactions with your children in the waiting room are all things that are observed and considered. If you interrupt the evaluator, talk too much about yourself, are disorganized, or come across as rude that could impact you negatively as the evaluator is specifically looking at your communication skills as it relates to co-parenting.  You should speak with your attorney in advance of every interview in order to strategize and prepare. You should also discuss what documentation you are going to submit to the evaluator and how it will be organized for the most effective review.

Each psychologist has a different set of tests they administer but the most commonly utilized test is the Minnesota Multiphasic Personality Inventory (MMPI) which is a set of true/false questions which analyze personality traits and psychopathy. The evaluator should not make any diagnoses of mental health conditions, but they will likely report observed traits that indicate such disorders.  The test results can be utilized to support recommendations regarding parenting time and decision-making responsibilities.

The evaluator’s job is to complete an investigation and prepare a thorough report containing their recommendations with regard to the issue or issues they have been appointed to explore, most commonly, parenting time and allocation of parental responsibilities. Typically, the report will review the facts of the case, apply those facts to the statutory best interest factors and weigh (or determine) which factors are the most important in your case. The report is submitted to the court, who will review and consider it at trial, if no settlement is reached.  The evaluator will also likely become a witness in the case, meaning they will testify before the judge.

If you are unhappy with the evaluator’s report, it’s possible you could seek the input of your own evaluator. However, the best option is for you to be fully prepared at the initial evaluation in order to obtain a favorable report. The experienced attorneys at McSwain Nagle Giese & Rapp, P.C. can assist you with the 604.10(b) evaluation process and are available for a free 30 minute initial consultation to discuss your case.  Please call 630-407-1200 or visit www.dupagedivorcelawyers.com today.