When and How to Use Experts in Custody Cases

Having been in domestic court for over 30 years, I have had too many occasions to hear a judge say to people, “Folks, why would you ever want to put the fate of your children in the hands of a stranger?” That statement is a judge’s way of telling the parties that custody matters are really better settled by those people who know the children best, the parents. You are the true expert when it comes to the needs of your children.

In fact, most people are able to agree on a custody arrangement without having to go to court. Because of this “self selection” those matters which are going to court are, necessarily, more contentious.

In North Carolina, whether married or unmarried, the parents of a minor child (once paternity has been acknowledged or determined by court) have equal rights to the custody of the child. “As noted supra, given the unambiguous 1977 modification, N.C.G.S. §50-13.2(a) now provides that “[b]etween the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.” Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003). When a couple decides to separate, each of them has equal rights to the custody of their children, neither party has a superior right. Nor can a party unilaterally dictate terms of visitation or deny the other parent the right to see the child.

Many times, the best thing two separating parents can do is sit down and work out a temporary agreement about custody. Emotions are probably running very high at the time of separation, but many parents can put aside personal animosity and work out an arrangement that takes the needs of the child into consideration. The primary goal should be for the child to have a good relationship with both the parents.

There are two parts of custody, physical custody, which means actually physically having the child in your care, and legal custody, which is making parenting decisions which directly affect the welfare of the child. Parents can share either, neither, or both of these parts of custody.

As the separation of the parties progresses, there are many points where an agreement regarding custody can be reached. At each of these points, and after the final issues of custody are resolved there are opportunities to use experts to aid in finding the best arrangement for the children.

  1. Prior to Separation: If your separation is planned or expected, it is possible to set up either a temporary or a permanent custody arrangement. Since it is not possible to know in advance how the child will be affected, it is best to work together to maintain contact with both parties, if possible. This arrangement will, necessarily, have to be modified when the parties are able to determine their direction. Prior to separating or telling children of separation it may be worthwhile to have a meeting with an agreed upon child psychologist to discuss how to tell the children of your impending separation and to help determine an initial custody plan. In addition, at all times during the separation process it is advisable to check in with the school counselor on a periodic basis. By letting the school counselor know of your situation, you are allowing them an opportunity to bring your child in to available groups for children of separating and divorced families. In addition, the knowledge may be very valuable in assessing changes in the child, either acting out or withdrawing. Many children need to know that there is a person who is not a parent whom they can talk to if need be.
  2. When Entering an Agreement: A separation agreement is a contract parties can enter into to determine their rights and obligations at the break up of their marriage. It can and usually does contain terms for child custody and visitation. While your attorney can outline the basic types of custody arrangements and explain how they differ and the good and bad points of each, an expert on the needs of children can help work out a plan in the best interest of the children. In the follow up study to the pilot research in children of divorce, Judith Wallerstein determined that the one thing that bothered children the most about the entire divorce and custody process was that nobody every asked them for their input. This is NOT to suggest that you ask your children “which one of us do you want to live with?” Most children love both parents and should not be placed in the untenable position of having to choose. Better to let your children know you love them and care about their wants and needs, but that the decision of with whom the child will live is an adult decision and not theirs to make.
  3. Court Ordered Mediation: Court ordered mediation is required in most North Carolina counties. It is an opportunity for both parties to reach an agreement without proceeding to court. The end document is an informal document drawn up by the mediator and signed by each party. It is then signed by a judge and becomes the order of the court. While the process is helpful in freeing up court time, and give the parties their final opportunity to wok together for the good of the child, parties often fail to understand the finality of the agreement or the actual terms of the order. For this reason, before entering into a parenting agreement, it is advisable to discuss the terms with an attorney.
  4. Psychological Evaluations or Custody Evaluations: In most cases, a custody evaluation is unnecessary. It will merely state that both parties are good people, have strengths and weaknesses which make them human but will not be major factors in their ability to parent. However there are some cases which would benefit from a custody evaluation. These cases include: a) cases where there has been a significant change in past conduct (i.e. sobriety, maturity, change in life goals, etc.); b) cases where a problem exists but is hard to prove without test data or expert evaluation (i.e. closet alcoholic, child alienation, paranoia, etc.); and c) cases where false allegations have been made (i.e. sexual abuse, inappropriate discipline or other conduct). A competent report can be a useful tool for both parties. It will allow a platform for negotiations and the possibility of a mediated settlement. It will, also, allow each party to see the strengths and weaknesses of the other party as a parent. These strengths and weaknesses can be used by the court to build an appropriate custody arrangement.
  5. Trials: You and your child’s other parent have more information about and care more about your children than any other people in the world. However, one of you has elected to have a stranger decide the custodial schedule for your children. If your trial is going to include the testimony of an expert who has conducted a forensic custody evaluation, there should be data and information that you and your attorney can discover from the expert, in addition to the expert’s report, and which you can use in trial. Regardless of whether you are the party who requested the evaluation or an unwilling participant, it is in your best interest to participate in good faith, and cooperate fully with the evaluators. These people will produce a report which will have great weight with the court, the better you look, the better it will be for you. While evaluators try to be objective, it is impossible for any report to be written about another person that does not include some subjective judgment. The trial is your opportunity to bring the court’s attention to those issues that are not otherwise apparent to the court, as suggested in #4, supra. Use your expert judiciously to highlight those matters which cast you in a positive light or which validate your concerns about the other party. If you are the recipient of a negative report which the opposing party wishes to enter, highlight the positive things the report says about you (there is bound to be something) and use your good qualities to form questions to the expert which will show you in a positive light. A trial is an adversarial proceeding and by the time you get to court, you will have had plenty of time to settle matters as stated in paragraphs 1 through 4, above. This is the time to use an expert to show your strengths and the other party’s issues. But don’t forget, the judge is going to rule, the attorneys and experts are going to go home, but at least three people – you, the other parent, and your child will have to live with this decision forever. Be sure your conduct is such that you will be able to show that you were always acting in the best interest of your child.