Child custody can be highly charged and emotional for everyone involved. When deciding child custody, the New Jersey court uses several factors to decide the best possible scenario for the custody of children. The courts will always do what is in the child’s “best interests.” If you are having a child custody dispute, an independent licensed mental health professional such as a psychiatrist, psychologist, or other mental health expert, can interview each member of the family about their parent/child relationship. This process is called a forensic child custody evaluation and provides neutral information and recommendations for the Court.
In New Jersey, there are 2 different types of child custody:
- Legal Custody:
Refers to any decision made regarding a child’s education, religion, and health care.
- Physical Custody:
Refers to where a child spends their time.
An attorney can help with any issue, including:
- Out-of-state Relocation
- Legal Guardianship
- Modifications to Child Custody Arrangements
- Child Visitation/ Parenting Time
- Parental Alienation
WATCH: Attorney Abigale Stolfe explains what a forensic child custody evaluation is when there is a child custody dispute.
Toms River Attorneys
Assisting With Child Custody, Visitation & Parenting Plans in Toms River
New Jersey Family Law Group’s attorneys can help you understand your various options and work with you to find a customized solution that fits your family’s needs. If you are seeking assistance with any divorce and family law matter, such as child custody, visitation, or creating a parenting plan, our lawyer is here to help. With offices in Toms River and Moorestown, our child custody advocates can help you seek a fair, collaborative resolution so that you can begin to move forward with your life as soon as possible. Contact us today at 732-240-9555 to discuss your case.
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Hi. This is Abigale Stolfe from New Jersey Family Law Group. Today, we’re going to talk about forensic custody evaluations. A lot of times, people do not want to go down the road of litigating custody. It makes a tremendous amount of sense. You don’t want to put yourself your child or your spouse through the debate of custody and parenting time. You might view it as something that can easily be resolved without the necessity of going down that road. But a lot of times, we just don’t have a choice. If we don’t have two people who can come to an agreement on the right parenting time or the right custodial designation, we do have to go down this avenue of a forensic custody evaluator, so I wanted to take a minute to explain to you what that means when we often have to engage an evaluator and what you should be prepared for in that evaluation.
Let’s start with the basics. There are other videos that I have uploaded that talk about parenting time and custody. I would refer you first and foremost to those videos to talk about the differences between custody designations, and really, my opinion on how to decide a parenting time situation, which is really to look at a calendar and figure out the realities of your need and the ability to care for your child. But let’s assume that you guys can’t come to an agreement and now there’s a bitter battle. Your attorneys are going back and forth. Maybe you’ve gone before a judge or a mediator or an arbitrator a couple of times and you just can’t find that resolution to where your child or children should live and on what days they should be with the other parent. That’s when a forensic custody evaluator, that’s a tongue-twister, comes into play.
What we do in those situations is by either court order or by agreement, you and your spouse either engage one joint expert, meaning it’s one person who’s working for the both of you, or individual experts, meaning this is a person who you have retained individually on your behalf on your litigation team. When you talk to your own evaluator, you have more latitude in having discussions that your spouse would not be aware you’re having. When you’re talking to a joint evaluator, everything is available to be known to or by the other attorney and/or your spouse, so depending on your litigation strategy should first and foremost drive whether you’re retaining your own expert or whether you are retaining a joint custody expert. That is a conversation you should absolutely have, with your attorney, obviously, before making a decision which avenue is proper for your own litigation.
Let’s assume for this discussion that you’re hiring a joint expert. The types of criteria the expert is going to look towards is all based on the statute. There, again, are other videos we’ll have talked about each factor of the statute relative to custody, so we’re not going to go through all those factors right now. But when an evaluator is looking towards, “What do I think is best for this family, particularly this child?” because that’s their job, their job is the child, they’re going to have an eye toward the statute because at the end of the day, their analysis has to be based in some statutory reason. It can’t just be, “Well, Mom wants X and Dad wants Y, so I flipped a coin and I went with Dad.” That’s not happening. What the evaluator’s going to do is they’re going to look towards every act and decision you make during the course of litigation, so what you may think is not a big deal could turn out to be a pretty significant turning point in the eyes of the evaluator.
Well, what do I mean by that? Well, if you have a situation where you have filed for sole custody of your child, the evaluator may look at that and say, “Well, why would you make a decision to file for sole custody when you’ve always had joint custody? There’s no allegations of drug, alcohol, or any other moral incompetence that would mean your spouse shouldn’t be around the child, or have some weight in the decision-making of the child. There’s no restraining orders. There’s no history of domestic violence.” What would drive a decision to file for sole custody? Something as simple as your first filing and with the court, your first engagement in this process could be very questionable by the time you get down the road of having that conversation with the evaluator.
Now, maybe you have a great explanation for why you did it, but it can’t be, “Well, my attorney just said so, so I did it.” The evaluators are not necessarily going to give a lot of credence to that explanation. You can take that through every facet of litigation. If you have to do interim motions, meaning you had to go to the court to have decisions made during the divorce process, the evaluator is going to read those motions. The evaluator is going to be privy to what happened in all of those court events. The evaluator is going to be well-aware of your stance in litigation, so every single piece of your litigation is going to be reviewed to some degree in the context of a custody evaluation.
But beyond that, did you arrive to your appointment on time? How did you treat the staff when you called to make your appointment? Did you not show up without any reason or notice? How did you look when you came to the appointment? If you go to the appointment disheveled and a mess, they’re going to note that. They’re going to say, “Well, gee, if they couldn’t get themselves together, how can I expect they can get the child together?” All of these pieces that may seem inconsequential to you in the moment could, and arguably are, pretty significant to the custody evaluator who’s trying to decide the best home environment and the parent who will provide the most structure for the child. Keep that in mind whenever you are in the process of engaging, meaning you are working actively with the custody evaluator.
After the report is released, you don’t get to call the evaluator and have a private conversation, nor does your attorney, nor does your spouse or their attorney. However, the evaluator may have a conversation with the two attorneys together in order to weigh in, provide a little more insight. If one attorney says, “Well, wait, did you consider X, Y, Z?” they may say, “I didn’t know that X, Y, Z,” or they may say, “Yeah, you know what? I did, but I guess I didn’t mention it. Let me go back and write it in the report that I did consider those factors.” They can have a conversation if it’s a joint expert with both attorneys, but not with one attorney, nor with one litigant. If they are your own expert, then they can have a conversation alone with you or your attorney. That’s a key difference between a joint evaluator and an individual evaluator.
Once the report is finalized, then it is released in order to either facilitate negotiations or be testified to at trial or arbitration, so a report from an evaluator is not just a letter saying, “This is what I think you should do.” That is not a report. A report is a detailed document which outlines your test scores, it outlines their impressions of you, it outlines the statutory factors. It provides a lot of detail into how they came to the basis of their opinion. But the report on its own can’t just be accepted by the court. The report has to be brought into court by the expert, so when you’re addressing your custody litigation by and with a custody evaluator, understand that the cost doesn’t end when the evaluation ends. If your matter is going to go to trial and be debated, that evaluator is going to have to come in and testify, and of course, there’s going to be a cost to that.
The court cannot simply hang its hat on the evaluation. The court has to hear the testimony of the evaluator, hear the cross-examination if one party is opposing the evaluator’s testimony, and has to weigh that evaluator’s testimony in light of the statute in light of the court’s own opinion about each litigate. An evaluator could say, “I wholeheartedly think the children should go with Dad 100% of the time. Mom should have every other weekend.” But by the time it gets to trial, the court is looking a little bit questionably at Dad’s behavior during the course of litigation, maybe points the evaluator didn’t know. The court can say, “I considered what the evaluator said, but I’m going to go ahead and discount that because I don’t think the evaluator considered these 10 very significant points in my mind,” so be aware that the evaluator’s opinion is not the end-all, be all. The court cannot simply hang its hat on the evaluator’s opinion, adopt it, sign, and move on with life. The court still has to make its own decision and own findings relative to custody, which may contradict what the evaluator decided.
That being said, assuming there’s no significant issues that the evaluator did not consider, it is a good gauge for what you can expect the outcome of your case to be. Again, they can’t just adopt it, but it’s a good gauge if there’s no smoking gun that the court would say, “Well, this is what the evaluator said. I don’t really find anything significantly different. However, I’m going to add or subtract these couple of days, nights, decision-making power, et cetera, based on the couple of pieces and points that I heard during the trial.”
When you get that evaluation, if you can come to an agreement that adopts or incorporates or even modifies a little bit and then incorporates the evaluator’s opinion into a final settlement, you are significantly ahead of the game. More importantly, your child or children is significantly ahead of the game because children do not want to watch their parents fight and they certainly don’t want to watch their parents fight over them. That is a very, very hard place for a child to be. What they really want is unity, so to the extent you can provide that unity and you can come to resolution that ends the conflict, your children will be far better off, even if it means one or both of you gave a little bit on the amount of time that you felt was appropriate for the children to be with the other parent.
What I will tell you is if you get to the point of having to retain a forensic custody evaluator, be mindful this person is there for your child or children. This person is there to facilitate the court’s obligation to your child or children. It is not the evaluator’s job to rubber-stamp your parenting plan, nor is it the evaluator’s job to disparage your spouse. It is the evaluator’s job to give information to the court that would facilitate the court’s role in protecting your children, which means coming up with the right custodial designation and parenting plan. To the extent you can facilitate that, that is what you should do. If you can come to a settlement after the evaluation, you should absolutely do that. Even if you feel like you’ve poured in tons of money into this evaluator, come to the settlement. It’s the best finalization for your children.
If you need assistance in your custody litigation, give us a call. Abigale Stolfe, New Jersey Family Law Group, (732) 240-9555.