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 important.
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.
Physical custody 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 be:
"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
homework...."
- 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 that you may be ordered to provide a urine sample
for testing to determine if you have used drugs or alcohol.
CUSTODY STUDY ELEMENTS
Although each custody evaluator may have a slightly different approach to performing
custody evaluations there are some things you should expect :
-
Initial Interview with Evaluator. At the initial interview, the evaluator will
discuss at length the past history of care with the child. The evaluator will attempt to
determine who was the primary caretaker.
BE PREPARED! At the initial interview arrive prepared with a
chronology of events clearly set out.
- Home Visit(s). The evaluator will make at least one home visit to watch
you interact with your child(ren). The evaluator is watching to see:
-
Whether you actively play with and interact with your child;
-
- Whether you set appropriate boundaries for the child and whether the child obeys
those boundaries;
- Discipline used;
- Child's reaction to the parent;
- Condition of the home environment.
-
Collateral Contacts. The evaluator will ask for a list of persons that you think the
evaluator should contact. Family members are usually not good contact since they may
be biased in your favor. Where possible use independent contacts such as counselors,
daycare providers, and school teachers.
- Alcohol Assessments. Where there are allegations of alcohol or drug abuse,
the evaluator may refer you to a counselor for a chemical dependency evaluation. It is
important that you cooperate in that process.
- Psychological Evaluations. Where there are allegations of emotional or
anger problems, the evaluator may refer you to a counselor or psychologist for a
psychological evaluation. It is important that you cooperate in that process. Make sure that
you communicate with the evaluator or counselor regarding any and all appointments.
Budget enough time to complete and testing that is required. A failure to cooperate will
appear in the evaluation.
WHAT YOU SHOULD TRY TO DEMONSTRATE
Remember, there are six magic words in custody evaluations.- "Best Interests of the
Minor Child". Custody evaluators listen for issues that relate to that phrase. You
should relate how each of your proposals is beneficial to your child(ren). Wherever
possible use phrases that mean "best interest of the minor child" without using those exact
words. Using the exact words sounds too legalistic and prepared. Your statements should
sound more natural.
There are certain things that evaluators look for in their custody evaluation. You should
discuss these issues with the evaluator truthfully since the evaluator will, to a degree,
assess your credibility. The issues you should be prepared to raise are the following:
-
Primary Caretaker. Where has the child lived since birth? What was the extent
of contact each parent had at each phase of the child's life? What responsibilities did each
parent have?
The best way to support the contention that you provided care for the
minor child is through independent documentation. The other parent
will no doubt contradict your assertions that you provided much of the
care. Independent documentation may include:
- Daycare or school records demonstrating drop off and
pick ups or attendance at parent-teacher conferences. Even if you do not have documents
demonstrating attendance at school functions at least verify the dates of the conferences
and familiarize yourself with the daycare provider's or teacher's
names. The more information you are able to provide in that regard the more
credible you will appear as an active parent.
- Medical records may document which parent brought the child in for
a medical or dental appointment. If you can acquire these records prior to meeting with the
evaluator, do so.
- Homework assignments or report cards may
require a parental signature before they are submitted at school. That signature may
provide independent verification that the parent reviewed or was actively involved in the
child's schooling. Wherever possible acquire and retain these documents. Provide them
to the custody evaluator to support your claims that you were actively involved in the
child(ren)'s schooling.
- Be able to relate who the child(ren)'s friends are
and what activities they enjoy in detail.
- Stability. The evaluator will be interested in which parent is able to
provide the greater stability for the child. Stability includes a stable residence
and a stable job. You may wish to document the ways in which you have
provided greater stability in the past. You obviously will not emphasize those
areas that do not favor you.
To effectively present the areas where you have provided or are able to
provide more stability, you may wish to create a detailed charts. Visual aids
help to present a clear picture to the evaluator. For example you may wish
to create a chronological chart regarding each parent's residence and how
many times the child has changed residences or schools. You may also wish
to create a summary of each parent's employment to demonstrate stable
financial circumstances. Independent verification is also very
helpful. Where possible, you may wish to procur documents
demonstrating residence changes such as leases, purchase agreements or
real estate taxes.
- Endangerment or Neglect. If you are raising issues of endangerment
you must relate specific incidents. Endangerment may be physical,
emotional or developmental. A calendar may be helpful to document the
dates of the incidents. Documentation can carry critical weight with this type
of allegation. Documents may include:
- Medical reports documenting injuries from abuse or lack
of supervision;
- Medical reports documenting complications because of
neglect - health issues such as asthma from cigarettes smoke or lice from lack
of hygiene.
- Police reports relating to police calls to the
other parent's home;
- Any child protection reports;
- Counseling records for the child or the parent;
- The other parent's criminal or driving record;
- The criminal or driving record of individuals that have
significant contact with the minor child(ren);
- School records may document attendance
problems, school performance problems, counseling issues or erratic child behavior while
in the other parent's care or after returning from the other parent's care.
REMEMBER: Endangerment only exists if you tie the other parent's
conduct into the child's care and the child's best
interests. For example, if you
allege the other parent has an alcohol problem. It only will be
effective if you can relate specific incidents where the alcohol
use or abuse affected the minor child(ren). (eg. The parent
passed out on the couch while the child played unsupervised.
The parent drove the child in the car while intoxicated. The
parent was out partying consistently while the child was be
cared for by a stranger.)
- Parenting Plan. The custody evaluator will want to know what your
proposal is for parenting. You should be prepared with research, facts and
answers. You may wish to write out your answers to the following questions so that your response seems thought out. Do not over prepare, your response
should not sound mechanical. The answers should include:
- Where will the child live? Why is that in the child's best interests?
- What school will the child attend?
- Why is that in the child's best
interests?
- What will your work schedule be?
- Will that allow you sufficient time to supervise the child?
- What schedule do you propose for the other parents?
- How does that schedule provide stability?
- Why is that schedule in the child's best interests? (Remember:
The custody evaluator is also looking at which parent is more likely to facilitate contact with
the other parent. If you appear to be an unreasonable obstructionist with regard to the
other parent's contact, it may be used against you.)
PARENTING NOTEBOOKS.
In a custody proceeding it is important to maintain a
notebook including dates that events occur relating to the care of your child(ren). What is
the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party's parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.
PRIVATE CUSTODY EVALUATIONS.
You may also have a private custody evaluation performed by an independent professional. Oftentimes the only way to combat a biased or unfavorable custody evaluation is with a private custody evaluation. Custody evaluations can be costly and may run anywhere from $2,000 to $8,000.
If you are seeking a custody evaluator, CLICK HERE to review our network of professionals.
ATTACHMENT A
518.17 Custody and support of children on judgment.
Subdivision 1. The best interests of the child. (a) "The best interests of the child"
means all relevant factors to be considered and evaluated by the court including:
- the wishes of the child's parent or parents as to custody;
- the reasonable preference of the child, if the court deems the child to be of sufficient
age to express preference;
- the child's primary caretaker;
- the intimacy of the relationship between each parent and the child;
- the interaction and interrelationship of the child with a parent or parents, siblings, and
any other person who may significantly affect the child's best interests;
- the child's adjustment to home, school, and community;
- the length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity;
- the permanence, as a family unit, of the existing or proposed custodial home;
- the mental and physical health of all individuals involved; except that a disability, as
defined in section 363.01, of a proposed custodian or the child shall not be determinative
of the custody of the child, unless the proposed custodial arrangement is not in the best
interest of the child;
- the capacity and disposition of the parties to give the child love, affection, and
guidance, and to continue educating and raising the child in the child's culture and religion
or creed, if any;
- the child's cultural background;
- the effect on the child of the actions of an abuser, if related to domestic abuse, as
defined in section 518B.01, that has occurred between the parents or between a parent
and another individual, whether or not the individual alleged to have committed domestic
abuse is or ever was a family or household member of the parent; and
- except in cases in which a finding of domestic abuse as defined in section 518B.01 has
been made, the disposition of each parent to encourage and permit frequent and
continuing contact by the other parent with the child.
The court may not use one factor to the exclusion of all others. The primary caretaker
factor may not be used as a presumption in determining the best interests of the child. The
court must make detailed findings on each of the factors and explain how the factors led
to its conclusions and to the determination of the best interests of the child.
(b) The court shall not consider conduct of a proposed custodian that does not affect the
custodian's relationship to the child.
Subd. 1a. Evidence of false allegations of child abuse. The court shall consider
evidence of a violation of section 609.507 in determining the best interests of the child.
Subd. 2. Factors when joint custody is sought. In addition to the factors listed
in subdivision 1, where either joint legal or joint physical custody is contemplated or sought,
the court shall consider the following relevant factors:
(a) The ability of parents to cooperate in the rearing of their children;
(b) Methods for resolving disputes regarding any major decision concerning the life of the
child, and the parents' willingness to use those methods;
(c) Whether it would be detrimental to the child if one parent were to have sole authority
over the child's upbringing; and
(d) Whether domestic abuse, as defined in section 518B.01, has occurred between the
parents.
The court shall use a rebuttable presumption that upon request of either or both parties,
joint legal custody is in the best interests of the child. However, the court shall use a
rebuttable presumption that joint legal or physical custody is not in the best interests of the
child if domestic abuse, as defined in section 518B.01, has occurred between the parents.
If the court awards joint legal or physical custody over the objection of a party, the court
shall make detailed findings on each of the factors in this subdivision and explain how the
factors led to its determination that joint custody would be in the best interests of the child.
-- Maury D. Beaulier, Esq. - Hellmuth & Johnson, PLLC