by Attorney and Certified Family Law Specialist Raelynn Stattner
In every family law case involving custody and visitation issues, the parents are required to participate in a custody mediation or evaluation process. By default, parents are scheduled for custody mediation though an avenue provided by the court system, called Family Court Services. There is also an alternative option for engaging in a private custody evaluation outside of the process provided by the court system. The product of either process is very important to the outcome of the custody aspects of the case. In turn, it is important to know your options, the differences as to each method, and how to prepare for the mediation or evaluation.
Part 2: Private Custody Evaluation
As noted above, when a motion related to child custody and visitation is filed, the Court automatically schedules parties for Family Court Services mediation (commonly abbreviated as “FCS”). However, parties to a custody matter in California may opt out of the default-FCS system and engage in a private custody evaluation. A private custody evaluation involves a process parallel to FCS; however, it is different in many aspects in terms of the process, requirements, and scope.
First, a private custody evaluation must be mutually agreed upon by the parties or ordered by the Court. To engage in this process, there are specific forms which must be completed and submitted to the Court. One such form is signed by the evaluator which verifies his or her qualifications regarding licensure, education, and training requirements.
Another form is signed by the parties verifying the use of a private custody evaluator, including but not limited to defining the scope of his or her work as well as the payment of the evaluator’s fees. Given the sensitive nature of the evaluation process, it is often prudent to attach a separate and more detailed agreement outlining the conduct of the evaluation.
The private custody evaluator has the ability to interview both parents (separately and possibly together, depending on the circumstances), the children (if age appropriate), observe the parents interacting with the children, as well as review and collect documentation relevant to the evaluation. The evaluator can also make contact with relevant third parties, such as therapists and teachers for corroborating information.
All private custody evaluators are required prepare a written report for transmittal to the parents and/or their counsel, as applicable. The written report generally outlines the evaluator’s information gathering procedure and source of information (including time spent on both), any limitations on their investigation, as well as detailed recommendations regarding the children’s best interest in custody and visitation.
After the written report is transmitted to both parties, it must be submitted to the Court with a specific cover sheet verifying the confidentiality of the report; this is required for transmitting the report to the Court and ensures it does not make its way to the Court’s public file. The Court consider the report in making custody and visitation orders. As with FCS reports, a private custody evaluator’s report his highly confidential.; the Court can sanction the parties and/or their counsel for disclosing any portion of a custody evaluation report.
So what is the difference between FCS and a private custody evaluation…
The three most significant differences are the scope of the evaluation, the time spent on the evaluation, and the cost.
First, the scope of a private custody evaluation extends well beyond the scope of FCS mediation. This includes the private custody evaluator’s ability to consider outside corroborating information and the conduct of the various interviews. As noted above, the evaluator can observe interactions between the children and the parents and the evaluator can consider outside documents. The FCS mediator cannot do either. These are just a few examples.
As a result of the above, a private custody evaluator has the ability to spend significantly more time conducting his or her investigation. An FCS mediator is much more limited in his or her time investigating the case and issuing a report.
Lastly, parties must consider the cost of a private custody evaluation. FCS mediation is a free service offered by the Court. Because of the time and scope of his or her duty, a private custody evaluation often costs thousands of dollars; the cost is shared by both parties or payable by one party.
These three primary differences are a few things to consider in assessing the best course of action for your custody case.