The Case for Brief Confidential Evaluations

In Child Custody Disputes

By Tara Fass, LMFT, Richard Gilbert, Ph.D.,and Diana Mercer, J.D., copyright 2005

Court mandated child custody evaluations (CCEs), Civil Code 730, are well-intended investigative instruments designed to aid bench officers in resolving custody issues. They have numerous shortcomings, however. By way of background, in the past, a CCE would start within a few weeks of the original order and take approximately 6-8 weeks to conduct publicly through Family Court Services or through private practitioners, and settle either in or out of court. In Los Angeles, the current wait time varies, but is never less than two, and can be up to, four or more months to commence. Civil Code 1257.3 was adopted in 1999, ushering in the present era of court ordered partial evaluations, which are known in the field by several different names. The court’s version is the Fast-Track Evaluation which routinely includes oral testimony, but not a written report, by the evaluator. This quickly replaced the term Mini-Evaluations because the nomenclature was roundly viewed by everyone as having the connotation of inferiority. Allen Gottfried and Kay Bathurst developed the methodology and coined the term for Focused Issue Evaluations, which generally includes only a written report, while Rapid Response and Limited Scope Evaluations are yet other terms in use.

The idea behinds partial evaluations came into being as a practical and clinical solution to the problem of the overwhelming case load leading to delays in decision making as well as the fact that some CCE’s involved non-clinical parents and specific, time-sensitive issues such as whether or not overnights should be granted to the non-custodial parent of an infant, where a child would go to school or would a child be allowed to move-away from the legal jurisdiction. The goal was for these shorter evaluations to be completed and heard within one or two weeks of the initial court order requesting it. Ironically, these instruments are also in such high demand that the waiting time in court to start the fast-track evaluations is as long, or longer, than what used to be the optimal timeframe for conducting the full CCE. Paradoxically, approximately a quarter of all court generated fast-track evaluations recommend full evaluations as part of the evaluator’s testimony and recommendation.

Additionally, for some time now it has been recognized that all too often, an unintended consequence of the full and partial CCEs has been that the evaluative process, in itself, not only prolongs the time and money spent in court, but also adds to the despair and dysfunction families experience as they struggle to heal and regain stability post-separation. The conventional wisdom increasingly is that court-ordered processes have become iatragenic to divided families, meaning that the ‘cure’ worsens the ‘condition.’ A by-product, or dual purpose, of the partial CCE’s was the hope it would address the harsh reality that the family court system needed to find ways to speed up its work because it could not increase its capacity fast enough to keep up with the burgeoning case load and that many cases bound for a CCE were not clinical type cases. The increasing awareness is that while these newer instruments are clinically and legally interesting in terms of approaching divided family issues, the problem remains that it takes place within the system that appears to be not only iatragenic, but collapsing under its own weight, particularly in light of today’s looming budget deficits.

This is why the promise and purpose of mediation, which is to resolve disputes by means other than litigation, has been the best idea in family law for the last twenty years. It is true though that at times, couples involved in mediation find themselves deadlocked regarding important issues of custody and/or visitation. In response, one or both parties may wonder what the disposition of these issues might be if they were litigated rather than resolved through mediation. Forrest Mosten in his textbook, The Complete Guide to Mediation (1997), proposes the use of a hybrid mini-evaluation, called the Confidential Mini Evaluation. We propose calling this new and promising tool in the field of mediation a Brief Confidential Evaluation (BCE) because it highlights the brevity and confidentiality of this instrument. From an attorney’s and a client’s perspective a BCE has a number of significant advantages over court-ordered custody evaluations.

First there is the issue of confidentiality: BCEs are private and discreet, whereas, in contrast, court-ordered custody evaluations are conducted in a public forum. Privacy is particularly important if your client has a high-profile or engages in an eccentric or questionable lifestyle. No portion of the BCE would be admissible as evidence in court and the evaluator could never be called as an expert witness in the case. The BCE could be seen as an excellent discovery technique and could reduce the risk of miscalculating your client’s ability to “win.”

Second, you and your client define the parameters, the timing, whether or not there is a written report and if collaterals or the children are interviewed. Unless there is a compelling need that is endorsed by both parties, the child or children who are the subject of the dispute are not included in the BCE. While information obtained from the child or children is always included in a court-ordered evaluation, and can be helpful and important, BCEs make every effort to shield the child or children in question from the stress and loyalty issues often generated by a formal custody evaluation.

By having a BCE, conducted by an evaluator with experience in court-ordered evaluations, the parties can learn the process, and likely outcome, of a litigated approach to the contested custody issues without having to go to court or leave the mediation process behind. In many cases, the knowledge derived from the BCE can help break the existing impasse and increase the likelihood of finding a mediated solution to the relevant issues. In this way, the parties can avoid the considerable time commitment, cost, stress and exposure involved in pursuing a court action. If nothing else, perhaps the parties can gain a perspective on their situation that had not previously occurred to them.

Even if the mediator has a sense what the root causes of contested issues might be, in order not to develop and dual relationship and to maintain neutrality, the mediator can not deliver such insights or information. Besides, most mediators in family law are not child development specialists informed of the current research in child development and divorce-related issues. In choosing an evaluator, the parties must be confident that great value is placed on conducting evaluations which are fair and impartial toward each party, respect the value of both parent-child relationships, and maintain a consistent focus on the best interests of the child or children that are the subject of the evaluation.

Added value to the BCE, and congruent with one of the fundamental values of mediation, is that to the extent possible, the parties should be self-determining. For instance, if one of the recommendations is for one or both parents to have therapy or parenting classes, if the parties can grasp the wisdom of those recommendations they can maintain face and pride by voluntarily entering into treatment, without having to be ordered, and not risking tainting the treatment or the mediation. The attorney has strengthened the case by having more manageable as well as more presentable clients. If the case were to litigate, the evaluative process would have to start over, though there could be an opportunity to mediate after the BCE and before court.

Thirdly, BCEs offer rapid results at a lower cost than a full CCE. The entire BCE, from the initial interviews with each party to the communication of findings and recommendations, can be completed in one to two weeks, based upon the availability of the parties. This is in contrast to court-ordered custody evaluations which often take six months or more from the time the evaluation is ordered to the submission of findings and can be extremely expensive, often costing seven or eight thousand dollars or more, without any guarantee of the final expense. Because it is customary to bill full evaluation services on an hourly basis, the parties are unaware at the outset what the eventual cost will be.

In contrast to the BCE, there is a fixed cost for 10 hours of service, generally in the ballpark of $2750.This cost covers all interviews with the parties and collateral contacts, administrative expenses incurred by the evaluator, time spent reviewing the parties’ questionnaires and any written materials, as well as a feedback session to go over the findings and recommendations with their mediation team. Thus, BCEs avoid having the parties go through a protracted period of stress and contention while having the child or children remain in a custody and/or visitation arrangement for an extended time that may not be in their best interests.

The steps leading to a BCE are simple and straightforward. After a divorcing couple decides to initiate a BCE, each party is sent a questionnaire to fill out. The questionnaire asks them to provide information regarding their personal, family, and marital history, their perceptions of the child or children’s developmental needs, and their views regarding the most desirable custody or visitation arrangements.In addition, parents are asked to provide contact information for important collateral relationships in the child or children’s lives (e.g., a nanny or other important, substitute-care provider; a pediatrician; a teacher; a therapist, etc.) and release granting approval for the evaluator to speak with these individuals.

After completing the questionnaire and collateral contact information, the parties forward their written materials to the evaluator along with full payment for the evaluation. The evaluator will then contact each party and arrange initial, individual meetings. The purpose of the initial interviews is to review, clarify, and expand upon the information provided in the written materials. The initial interviews generally take about 1.5 to 2 hours each.After the initial interviews, the evaluator will conduct telephone interviews with relevant collateral contacts and then arrange an hour-long follow-up interview with each party, including the children, if the parents agree that is necessary.Finally, the evaluator will organize the findings and recommendations of the evaluation and arrange a conjoint meeting with the parties and the mediation team to orally communicate the results.

Time Estimates for Steps in a CME

Authors Ms.Tara Fass and Ms. Diana Mercer work together as co-mediators at Peace Talks Mediation Services in Los Angeles (www.peace-talks.com). Ms. Mercer is also the co-author of Your Divorce Advisor: A lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce.(Fireside, 2001)