If you're reading this, you probably are either going through a custody battle or are concerned one may arise and you want to protect your family. You're in luck because you're in the right place to provide you information you may need to equip yourself with for this process.
(1) "Child custody evaluation" means an evaluative process ordered by a court in a contested case through which information, opinions, recommendations, and answers to specific questions asked by the court may be:
(A) made regarding:
(i) conservatorship of a child, including the terms and conditions of conservatorship;
(ii) possession of or access to a child, including the terms and conditions of possession or access; or
(iii) any other issue affecting the best interest of a child; and
(B) made to the court, the parties to the suit, the parties' attorneys, and any other person appointed under this chapter by the court in the suit.
The Child Custody Evaluator
A child custody evaluator means “an individual who conducts a child custody evaluation under this subchapter. The term includes a private child custody evaluator.” Tex. Fam. Code. Section 107.101(2).
So, who can conduct a child custody evaluation? The Family Code actually has very specific qualifications. Section 107.104 sets forth the minimum requirements of a child custody evaluator.
Sec. 107.104. CHILD CUSTODY EVALUATOR: MINIMUM QUALIFICATIONS.
(A) In this section:
(1) "Full-time experience" means a period during which an individual works at least 30 hours per week.
(2) "Human services field of study" means a field of study designed to prepare an individual in the disciplined application of counseling, family therapy, psychology, or social work values, principles, and methods.
(B) To be qualified to conduct a child custody evaluation, an individual must:
(1) have at least a master's degree from an accredited college or university in a human services field of study and a license to practice in this state as a social worker, professional counselor, marriage and family therapist, or psychologist, or have a license to practice medicine in this state and a board certification in psychiatry and:
(A) after completing any degree required by this subdivision, have two years of full-time experience or equivalent part-time experience under professional supervision during which the individual performed functions involving the evaluation of physical, intellectual, social, and psychological functioning and needs and developed an understanding of the social and physical environment, both present and prospective, to meet those needs; and
(B) after obtaining a license required by this subdivision, have performed at least 10 court-ordered child custody evaluations under the supervision of an individual qualified under this section;
(2) meet the requirements of Subdivision (1)(A) and be practicing under the direct supervision of an individual qualified under this section in order to complete at least 10 court-ordered child custody evaluations under supervision; or
(3) be employed by or under contract with a domestic relations office, provided that the individual conducts child custody evaluations relating only to families ordered by a court to participate in child custody evaluations conducted by the domestic relations office.
(C) Notwithstanding Subsections (b)(1) and (2), an individual with a doctoral degree and who holds a license in a human services field of study is qualified to conduct a child custody evaluation if the individual has completed a number of hours of professional development coursework and practice experience directly related to the performance of child custody evaluations as described by this chapter, satisfactory to the licensing agency that issues the individual's license.
(D) The licensing agency that issues a license to an individual described by Subsection (c) may determine by rule that internships, practicums, and other professional preparatory activities completed by the individual during the course of achieving the person's doctoral degree satisfy the requirements of Subsection (c) in whole or in part.
(E) In addition to the qualifications prescribed by this section, an individual must complete at least eight hours of family violence dynamics training provided by a family violence service provider to be qualified to conduct a child custody evaluation under this subchapter.
Basically it is a very long way of saying, the Child Custody Evaluator must have the proper credentials, including licensing, a Masters Degree from an accredited college or university in a human services field of study and is employed full-time. This will help ensure that the evaluator can provide you and the Court an appropriate evaluation.
Elements of a Child Custody Evaluation
Not only are there specific required qualifications of a child custody evaluator, the evaluation itself has very specific requirements.
The Child Custody Evaluation Order:
The order appointing a child custody evaluator must be very specific. Section 107.103 of the Texas Family Code sets forth the requirements for a child custody evaluation order.
Sec. 107.103. ORDER FOR CHILD CUSTODY EVALUATION. … (c) Except for an order appointing a child custody evaluator who is qualified under Section 107.104(b)(3), an order for a child custody evaluation must include:
(1) the name of each person who will conduct the evaluation;
(2) the purpose of the evaluation; and
(3) a list of the basic elements of an evaluation required by Section 107.109(c);
(4) a list of any additional elements of an evaluation required by the court to be completed, including any additional elements specified in Section 107.109(d); and
(5) the specific issues or questions to be addressed in the evaluation.
These requirements ask for the name of the evaluator(s), the purpose of the evaluation, the basics of all child custody evaluations, and importantly any elements that the Court will need, addressing specific issues in the case. If the order does not contain these required portions, there is no child custody evaluation and thus the evaluator cannot give an opinion about conservatorship or possession and access.
Elements of the Child Custody Evaluation
Furthermore, before completing the child custody evaluation, the evaluator must fulfill all the elements of a child custody evaluation:
Sec. 107.109. ELEMENTS OF CHILD CUSTODY EVALUATION.
(a) A child custody evaluator may not offer an opinion regarding conservatorship of a child who is the subject of a suit or possession of or access to the child unless each basic element of a child custody evaluation as specified in this section and each additional element ordered by the court, if any, has been completed, unless the failure to complete an element is satisfactorily explained as provided by Subsection (b).
(b) A child custody evaluator shall:
(1) identify in the report required by Section 107.113 any basic element or any additional element of a child custody evaluation described by this section that was not completed;
(2) explain the reasons the element was not completed; and
(3) include an explanation of the likely effect of the missing element on the confidence the child custody evaluator has in the evaluator's expert opinion.
(c) The basic elements of a child custody evaluation under this subchapter consist of:
(1) a personal interview of each party to the suit seeking conservatorship of, possession of, or access to the child;
(2) interviews, conducted in a developmentally appropriate manner, of each child who is the subject of the suit who is at least four years of age during a period of possession of each party to the suit but outside the presence of the party;
(3) observation of each child who is the subject of the suit, regardless of the age of the child, in the presence of each party to the suit, including, as appropriate, during supervised visitation, unless contact between a party and a child is prohibited by court order or the person conducting the evaluation has good cause for not conducting the observation and states the good cause in writing provided to the parties to the suit before the completion of the evaluation;
(4) an observation and, if the child is at least four years of age, an interview of any child who is not a subject of the suit who lives on a full-time basis in a residence that is the subject of the evaluation, including with other children or parties who are subjects of the evaluation, where appropriate;
(5) the obtaining of information from relevant collateral sources, including the review of:
(A) relevant school records;
(B) relevant physical and mental health records of each party to the suit and each child who is the subject of the suit;
(C) relevant records of the department obtained under Section 107.111;
(D) criminal history information relating to each child who is the subject of the suit, each party to the suit, and each person who lives with a party to the suit; and
(E) notwithstanding other law, records or information from any other collateral source that may have relevant information;
(6) for each individual residing in a residence subject to the child custody evaluation, consideration of any criminal history information and any contact with the department or a law enforcement agency regarding abuse or neglect; and
(7) assessment of the relationship between each child who is the subject of the suit and each party seeking possession of or access to the child.
(d) The court may order additional elements of a child custody evaluation under this subchapter, including the following:
(1) balanced interviews and observations of each child who is the subject of the suit so that a child who is interviewed or observed while in the care of one party to the suit is also interviewed or observed while in the care of each other party to the suit;
(2) an interview of each individual, including a child who is at least four years of age, residing on a full-time or part-time basis in a residence subject to the child custody evaluation;
(3) evaluation of the residence of each party seeking conservatorship of a child who is the subject of the suit or possession of or access to the child;
(4) observation of a child who is the subject of the suit with each adult who lives in a residence that is the subject of the evaluation;
(5) an interview, if the child is at least four years of age, and observation of a child who is not the subject of the suit but who lives on a full-time or part-time basis in a residence that is the subject of the evaluation;
(6) psychometric testing, if necessary, consistent with Section 107.110; and
(7) the performance of other tasks requested of the evaluator by the court, including: (A) a joint interview of the parties to the suit; or (B) the review of any other information that the court determines is relevant.
This basically explains that the evaluator is responsible for providing all the required elements of the child custody evaluation. With their expert knowledge, they are also required to provide an opinion if they are unable to provide an element of the evaluation that was ordered by the Court. To complete evaluating all necessary elements, a process of interviewing each parent seeking custody is required, an interview with the child or children involved in the suit as well as an observation of the children at their residences and more will be required. These evaluated elements allow the child custody evaluator to get an as complete picture of the child's or children's life as possible to give an expert opinion and recommendation to the Court.
If the evaluator does not fulfill all these tasks, the evaluation will be flawed and the opinion for conservatorship and possession and access based on the evaluation may not be allowed and/or considered by the court.
Child Custody Evaluation Report
After the conclusion of the child custody report, the evaluator is required to file a report:
Sec. 107.113. CHILD CUSTODY EVALUATION REPORT REQUIRED. (a) A child custody evaluator who conducts a child custody evaluation shall prepare a report containing the evaluator's findings, opinions, recommendations, and answers to specific questions asked by the court relating to the evaluation.
(b) The person conducting a child custody evaluation shall file with the court on a date set by the court notice that the report under this section is complete. On the earlier of the date the notice is filed or the date required under Section 107.114, the person shall provide a copy of the report to: (1) each party's attorney; (2) each party who is not represented by an attorney; and (3) each attorney ad litem, guardian ad litem, and amicus attorney appointed in the suit.
(c) If the suit is settled before completion of the child custody evaluation report, the report under this section is not required.
(d) A report prepared under this section must include the information required by Section 107.108(h) for each child custody evaluator who conducted any portion of the evaluation.
Similar to a guardian ad litem’s report, the custody evaluator’s report is subject to evidentiary challenge and must be filed before trial:
Sec. 107.114. INTRODUCTION AND PROVISION OF CHILD CUSTODY EVALUATION REPORT. (a) Disclosure to the court or the jury of the contents of a child custody evaluation report prepared under Section 107.113 is subject to the rules of evidence. (b) Unless the court has rendered an order restricting disclosure, a private child custody evaluator shall provide to the attorneys of the parties to a suit, any party who does not have an attorney, and any other person appointed by the court under this chapter in a suit a copy of the child custody evaluation report before the earlier of: (1) the third day after the date the child custody evaluation report is completed; or (2) the 30th day before the date of commencement of the trial.
The provisions explain that the child custody evaluator’s report must be filed thirty days before trial, as opposed to a guardian ad litem’s report that must be filed ten days before final trial. This is more evidence that a child custody evaluator and a guardian ad litem are two distinct things under the Texas Family Code.
If you are involved in a contested child custody case, it is in your best interest to hire an experienced attorney who is comfortable in and out of the courtroom. Reach out to our team today to see if your case is a good fit for Walters Gilbreath, PLLC.