What Do You Do if a Custody Evaluation Doesn’t Go Your Way?

You’re done with your custody evaluation. You’ve had your 4-903 conference. You’re not happy with the results. The custody evaluator got things wrong — it happens.

What do you do?

Options

There are really two options in this situation.

First, you accept the evaluator’s recommendations and settle. You might be tired of the fight or not have much money to continue, so you compromise, negotiate, and settle the case. If this is where you are, that’s okay. Litigation is long and difficult, and no one can blame you for wanting to be done with it.

Second, you decide you’re going to trial and you ready your case against the custody evaluation. Here are the basic steps in that process:

1. Subpoena the custody evaluator’s records.

You will need the evaluator’s notes and records to give to your rebuttal expert (more on that in a moment). A subpoena is the best way to get those records. Here is an example of the subpoena we use.

2. Find another custody evaluator to rebut the first evaluator’s findings and recommendations.

This is where things get tricky. You’ll need to hire a custody evaluator to review and rebut the first evaluator’s findings and recommendations. The evaluator you hire will not conduct a new evaluation. Instead, he or she will use the data from the evaluation already completed, critique the first evaluator’s findings, and give new findings and recommendations (in your favor, hopefully).

Just to be clear, the new evaluator will not re-interview everyone, will not conduct new psychological testing, and will not do new home visits. Instead, he or she is limited to the stuff already collected.

Piece of advice: you’ll need to hire someone who is great on the witness stand. He or she will have to be more convincing than the evaluator who has spent months evaluating you and your family. That’s a tough thing to ask, so you need someone who is super prepared and super convincing when testifying. If you hire someone who’s just okay on the stand, you’ll lose.

3. Designate your expert.

What I mean by designate your expert is you have to tell the court you’re going to call him or her to testify. This is a procedural thing your attorney should take care of automatically. Make sure it gets done, though. If you don’t designate your expert, the judge won’t let him or her testify at trial.

4. Really collaborate with the new evaluator when preparing for trial.

The child custody portion of your trial will hinge on your expert’s rebuttal testimony. That means you (well, your attorney, primarily) have to collaborate with your expert. Make sure your attorney maps out the questions and the all big points to hit during testimony. Good trial attorneys map out everything.

5. Get a written report to give to the judge before trial.

Because you’re going to trial, the first custody evaluator will have prepared a written report. Almost every judge reads that report before trial (it’s provided to the judge when the attorneys turn in their proposed trial exhibits, which usually happens about a month before trial). You’ll want to have a written report from your expert that the judge can read right after reviewing the initial custody evaluator’s report.

Some attorneys don’t see the need to provide a written rebuttal report, and I think that’s a mistake for a couple reasons. First, written reports are more well thought out and thorough than lives testimony. You are bound to lose nuance during testimony, and you don’t want to lose nuance when you’re already playing from behind the eight ball. Second, if the judge reads the custody evaluation and has nothing to rebut it immediately, that’s what will color the judge’s view of everything during trial. You won’t be able to put on your expert until at least half of the trial is already finished, and the damage might be irreparable at that point. It’s much better to sow seeds of doubt in the judge’s mind from the very beginning of the case, and a written expert rebuttal report does that.

Conclusion

Choosing the right custody evaluator upfront is perhaps the most important decision you will make during your case. Even more important than that decision, however, is who you will hire as a rebuttal expert. Choose well and collaborate with him or her to maximize your chances for success at trial.