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Are you prepared for a custody evaluation?

A custody evaluation is an important part of a litigated custody dispute. Dr. Aaron Robb is the program director and owner of Forensic Counseling Services, and is often called upon to conduct a custody evaluation. He’s here to talk about what a custody evaluation is, how people can best prepare for one, and what to expect in the process.

What is a custody evaluation?

00:38

Dr. Robb

Fundamentally, it’s a compare and contrast assignment. You’ve got two parents who are each saying, “Here’s what I want to have the world look like moving forward.” As mental health professionals who are also familiar with the law, we’re tasked by the court to advise on what seems to be the best for the child in question. 

Sometimes Parent A has a good plan. Sometimes parent B has a good plan. Often there’s a little bit from each that you can craft together to say, “Actually, here’s where the child would benefit the most.” Ultimately, we want to get folks to co-parent effectively, but if we can’t, we have a good fallback plan.

What is the role of the custody evaluator?

01:21

Jennifer

Often my clients request to have the child’s therapist make a custody evaluation recommendation to the court. Is that possible?

Dr. Aaron Robb

A therapist already involved with a family can’t perform a custody evaluation. There are several ethical considerations that go along with that, but the biggest one is the duty that’s held to the family and to the child for treatment versus a psycho-legal assessment. They start off very differently; they’re asking very different kinds of questions. 

Once you’re involved with a family as a therapist, you don’t have the same perspective as somebody coming in as a custody evaluator. They’re radically different roles. Now, if you’ve got a therapist who is making a recommendation for a particular dyslexia treatment program, that’s well within a treating therapist’s wheelhouse. However, if they’re making possession and access recommendations or parenting time recommendations, then that falls outside of the scope of the family therapist.. 

Custody evaluators are trained on advanced psycho-legal issues, which is to say there are hundreds of pages of law-related issues that we must be aware of—including how we structure an evaluation and how we get information from outside. 

Somebody who is seeing a child and getting one parent’s information is not necessarily going to have the full picture of what’s going on. Also, a custody evaluator has access to child protective services, records, and law enforcement records, so they’re going to get a much broader look at what’s happening within the family.

Jennifer

I think that’s really important. Often a treatment therapist develops a different kind of bond with the family and with the child, and in your role as a custody evaluator, you’re not coming at it from that perspective. You have a detached perspective.

Dr. Aaron Robb

Yes. It goes back to the compare and contrast issue. A therapist is advocating for what they are hearing in session, but are clients presenting accurately in therapy?  Oftentimes, people lack insight about what’s going on in their lives; they’re impaired in their insight which affects what they’re reporting to their therapist. Then, their therapist is starting from that impaired data set to say, “Here’s what should happen,” as opposed to getting a much broader look at things. The bigger picture is what’s important for the child involved.

Does a custody evaluator receive specific training?

04:40

Dr. Robb

Yes, there’s an extensive amount of clinical and post-clinical training to go through and there is experiential work to do. Litigation is like walking into a minefield. You do not want to step on a landmine, hear the click, and then realize there’s a problem. You want to have some education about some of the common issues you’re going to run into. Instead of hurting yourself and hurting a family along the way, you’re able to provide them good services. The clinical training model still applies. It’s folks who have that senior experience, training younger folks who are coming into the field. You wouldn’t want a surgeon who’s never previously seen an operation to remove your appendix. You also wouldn’t want a mental health professional who’s never worked on a custody evaluation to carve up your parenting time.

What is the purpose of a custody evaluation?

05:58

Dr. Robb

The ultimate goal is to get information to the parents, the attorneys, and ultimately the judge—the trier of fact about what’s going on for a family and how that impacts the best interests of the child (or children) in question. Best interest is plural. Even if only have one child, they’ve got multiple competing interests. They can only be at so many activities or so many enrichment programs, so you have to make some choices. 

Often, parents have conflicting values. The analogy I like to use is that one parent likes chocolate, one parent likes vanilla, and they’re fighting over the best flavor of ice cream. It’s a very different situation than one parent is using drugs and needs to be in a treatment program, or a child needs specific services that both parents may be overlooking because of their fight.

Jennifer

06:52

I often get feedback from my clients when we’re in the middle of a custody evaluation that they can’t read the evaluator. It’s a very different kind of human relationship because normally we socialize. We can make niceties and be friendly, but an evaluator is in a very different role. 

What should people expect when they’re working with an evaluator?

06:52

Dr. Robb

To start with, I’d say you should approach the process with fearless honesty. You are showing the evaluator you understand your world. If you’re kidding yourself about what’s going on, then that’s going to come out over time because the evaluator’s job is to ask questions about whether what you are telling me is consistent internally and externally. And then what alternative hypothesis can I frame about what’s going on? 

Certainly, every parent has their own explanation about what’s happening and why, but there are all these alternatives that—if you don’t consider them—you’re not broadening. If a parent can’t read the evaluator, that’s great because the evaluator shouldn’t be committing to things mid-evaluation. One of the great things about being an evaluator is I get to tell people that my opinion changes as the data that I gather changes.

I’ve had parents come in and present very well, and then I get law enforcement records that show that they’ve been leading a double life. I get other folks who are presenting themselves very honestly; they just have a flawed way of thinking about what’s going on. 

Again, this becomes a psycho-legal question. This isn’t just mental health, and it also isn’t just law. It’s that intersection of those two things that we’re dealing with for those folks.

Jennifer

In many human relationships, it’s all about whether or not the person likes you, but in the legal context, that doesn’t matter at all. It isn’t about whether the judge likes you. It’s not whether the custody evaluator likes you. It’s about what the data shows. 

Dr. Aaron Robb

One of the cases that stick in my mind is one where I had a very hard time writing a report. It involved a parent who I was not in sync with. We had a different set of interests, values, and all of that, but they were the parent who really understood this child’s needs. They were the best fit for this child in terms of parenting them; they just weren’t somebody I was ever going to a ball game with anytime soon. That’s something you need to be aware of as an evaluator. It’s not about who presents well. Often, people who are very toxic present well at first blush, and it’s only when you dig a little deeper that you get into, “Oh, but there’s this thing going on.”

What is your process for meeting with people and gathering data?

10:20

Dr. Robb

Different evaluators will do things differently. There’s a certain realm of acceptable practices. I meet individually with each parent initially because I don’t need to have them fight in front of me to know that there’s a fight going on. By definition, that’s happening along the way. I want them to be free to open up and tell me their views about what’s been happening. 

Even before then, I’m soliciting information through my intake paperwork. I’m orienting them to what I’m going to be asking about. I’ll see folks three or four times individually usually for a couple hours at a stretch to go over their views on what’s going on, so I can form an initial framework. I’ll also ask for written responses because some parents just do better when they’re given time to think through and write out their responses.

Then I delve into what’s been going on with the kids. I close my information gathering with interviews of the kids, and I’ll do those in a home visit. A lot of people mistakenly call this process a “home study.” That’s language from the seventies and child protective work. Most of the time, the home is not an issue. The one time that I had a home that has an issue was when one of them had graywater discharging to the side of a hill. The other one, I fell through the floor in the kitchen. The homes were equivalent between the parents. It was a socioeconomic issue. 

I often worry about parents who tell me, “Oh, my child is my life,” and they’re a hundred percent child-focused. A healthy adult has adult hobbies and interests and activities. Yes, they raise their children, so there’s a balancing act there. Kids must get fed; dinner has to get onto the table. There are certain logistical things that must be accomplished, and kids can often tell me a little more competently about how that works in their homes. They’re able to point stuff out. They’re able to say, “Here’s the doll, the transformer, or the other stuff that I like to play with. Here are the games or the books or the videos that we like to do.” And then we get into my individual interview with the child. Usually, when I’m talking to them, I sit on the floor in their room, and we just chat for a while about how things are going.

In the home, the child shows me where they’re living and how they’re living. Even when one parent has moved into a temporary apartment as they’re transitioning through a divorce, that tells me something about how that parent is handling things, as well as how comfortable a child feels in that environment and how focused the child is in that environment. 

I don’t want to give away everything, but there’s a structure to it. I spent years as a forensic interviewer for child protective services. I did a lot of teen law enforcement work. I think the best evaluators are really good child interviewers because there are a lot of nuances to talking to kids and making them feel comfortable. I think probably the saddest thing about my job is when I get kids who break down, crying with me, talking about no one is listening to them. 

There’s a great East Indian proverb that says, “When elephants fight, it’s the grass that suffers.” A lot of times these poor kids are talking about how mom and dad are always yelling at each other or how one parent is being mean to the other. Oftentimes, their perceptions about what’s happening convey that the “mean” parent is just protecting the child from a drug-abusing co-parent, but how is that playing to the kid? What’s being talked about, and what does that kid need in order to heal and move forward in a healthy way?

Jennifer

14:24

Very interesting. When you’re talking with the kids, one of the concerns I often hear from my clients is that the child is going to be coached. They fear that the other parent is oversharing information or is priming the child for the meeting with the evaluator. My twofold question is:

How do you tell if a child’s being coached?

14:24

Jennifer

One of the concerns I often hear from my clients is that the child is going to be coached. They fear that the other parent is oversharing information or is priming the child for the meeting with the evaluator. 

Dr. Robb

You can often tell if a kid’s been coached. I don’t want to pretend that we’re psychics. Sometimes we don’t learn about it at the time of the interview. Sometimes, it comes out later that the kids have been coached, and nobody could tell. But there are so many kids that arrive what I refer to as “spring-loaded.” You go in and say, “Hi, I’m Dr. Aaron Robb,” and the kid blurts out, “My parents told me, I should tell you, da, da, da.” They’re just full of information that they’re keeping in the short-term memory that they just need to get out because they’re feeling that pressure. And I’m like, “Oh, well, tell me more about that.” 

There are also a lot of kids who, as you start talking to them, reflect the exact same phrasing that their parents are using. When you get the six-year-old talking about points on the mortgage, you know they’ve been getting over exposed to adult information.

Are they getting coached? Maybe. 

What should parents be saying to children?

15:55

Dr. Robb

You get parents who turn their child into their confidante over coffee at breakfast. They’re spilling their guts about the breakdown of their adult relationship. The child can’t really process that, but they don’t want their parent to be in pain anymore. Their little shoulders can’t carry those kinds of burdens. 

I think that’s the big piece to tell kids—that the adults are taking care of things and that the adults will let them know when there’s a new plan. We’re working on it. Even if working on it means going in front of the man or the woman in the black dress and being told how to parent, that’s a way that adults work on things. And that’s what kids need to be reassured about: We’re your adults, we love you, and we’re taking care of you. We’re just figuring out the plan for doing that long term.

Jennifer

That’s such a good message for people. I hope they hear it because it’s not always natural. When you’re going through the big transition that divorce brings, sometimes oversharing happens. I think if people can be more aware and really listen and hear it from the child’s perspective, it can be helpful. 

What are the biggest mistakes that people make in the custody evaluation process?

15:55

Dr. Robb

Probably the first one is not being able to see their own role in a situation. There’s that person who comes in and says after a 15-year marriage that’s produced three children, “I knew on day one when I met them that they were a terrible parent.” And yet you courted them, married them, and produced three offspring? What’s that say about what was going on in that relationship for you? 

That’s different than the folks who come in and say, “We grew apart, we had different goals, and we recognized that we were trying to hold this together as best we could.” If they’re able to take a more realistic view of themselves, that makes my compare and contrast easier because I’m not having to wade through self-deception, which is the fancy word for denial. Not being able to say, “Oops, I’m human. I make mistakes.” 

A lot of times people get divorced because of manipulative relationships, and if someone is continuing to be manipulative in the divorce or even in the post-divorce modification process, that can come through really clearly in the long run. It’s not good to try to manipulate your co-parent. It’s good to approach healthy boundaries with your co-parent.

What are some good tools and resources for parents who want to improve communication?

19:00

Dr. Aaron Robb

There are many resources available especially those related to co-parenting. These could be therapists, or parenting educators who are familiar with the court and with court-connected families because it is a very different paradigm. 

There are also resources that I and my colleagues have put together. The website Co-parentingTexas.com has a lot of links to resources. Most custody evaluators have volunteered their time, teaching people how to do things better, even before they ever got involved with cases. We want kids to do better in the long run. 

Individually, finding a therapist who’s aware of court-connected issues and is going to not only support you but also confront you about things. The therapist who says nothing but “poor you” and “it’s all somebody else’s fault” may not be the person you need in this situation. You want a therapist who will challenge you and give you new tools. 

Whether you’re married, divorced, or never married, if you have a co-parent who wants to work on issues, you can find a good family therapist who’s trained in forensic issues. Most of the parenting facilitators who work with high conflict couples, post-litigation, are trained as family therapists as well. They’ll get the front-end stuff where you can voluntarily work on your problems, so you don’t have to get court-ordered to be dealing with things. Also, avoiding the other layers of cost that go along with that is a good thing as well.

What should people expect from parenting facilitation? 

20:43

Dr. Robb

Every parenting facilitator is going to be a little bit different—like every therapist coming from a different school of therapy is going to be different. Often, it’s about teaching parents some fundamentally accepted things about co-parenting. Things like keeping your co-parent informed about what’s going on; using polite, businesslike exchanges; sharing information in a way that’s going to benefit the kid. I think the best parenting facilitators, are those that talk to the parents about how to implement these skills. That may happen asynchronously, using things like our family wizard or other email programs where you can monitor what’s going on and put them together for joint sessions where you’re working on logistical issues. 

I used the chocolate/vanilla analogy earlier. A lot of parenting facilitators have to point out to parents, “You disagree about a values issue. If your job is to go buy a pint of ice cream, we can get chocolate one week and vanilla the next. And the next we can get swirl. Or we can get Rocky Road and everybody’s unhappy.” Then they buy the Neapolitan ice cream, and they chop the strawberry section off and throw it away. If we can help people see what’s going on, then we can help them deal with new ways to approach the problem. A lot of times they don’t even see it because it’s right up in their face.

How long does the typical custody evaluation take?

22:15

Dr. Robb

The typical evaluation takes six to eight months, and a lot of that depends on parent availability. Evaluations take longer when they are contentious. I’ve seen folks that just won’t respond for months on end, so that can drag the process out unnecessarily. I encourage people to talk with their attorneys about the solutions to that. I get a lot of folks calling my office saying, “My co-parent won’t send in their forms. What do we do?” That’s not something I’ve got a solution for at the front end. 

If everybody agrees up front that they’re going to participate, an evaluation can be done in four months. That means people coming in when they don’t want to, taking time out of their work schedule. You’re going to have to take time out of your vacations over the summer and prioritize the evaluation. Four to six months is a reasonable timeframe for something like this because not only do you have all the interviews that go on, but you’ve got all the collateral records, the law enforcement child protective services therapist that you’ve have to get, and collating all of that takes time.

Jennifer

We talked about the interviews that you do with the parents, and we talked about the interviews you do with the children, and you just mentioned collateral interviews. Is that part of the process in getting data points from others outside of your family?

Dr. Aaron Robb

Yes.

Who are good witnesses to include in your list of collaterals?

24:10

Dr. Robb

I always ask parents to give me three parenting references—people who know them and would be willing to speak for them. As some of our judges have said: “Mama’s going to love her baby.” When your mother is doing your parenting reference, we know it’s going to be positive. 

You’re going to find friends who will say nice things about you. Those are not so valuable to me as what does the teacher say about what’s going on for your child? What’s going on for your participation as well? I have parents who tell me, “Yeah, I work 60 hours a week, so I couldn’t make it into my kid’s school like my co-parent could because they were a stay-at-home parent,” and that’s a reality for a lot of folks. I prefer dealing with that reality versus the parent who worked 60 hours a week and says, “I was always involved with school,” and by involved they mean they were reading the school’s webpage. The teacher doesn’t know who they are. Those are two different kinds of things going on that I get from those data points. 

There are also physicians; every kid’s got a pediatrician. What’s going on with their medical care is often an issue for families. If kids have been involved with therapists, or if parents have been involved with therapists, often parents treat therapy with shame in a custody evaluation, and I’m always perplexed by that because I am a therapist at my core. I believe people can do better by various therapeutic techniques, so that’s something I encourage. If everything is perfect for you, you should be in therapy because you’re probably missing something, and if everything isn’t perfect, well maybe you don’t need to be in therapy, but there’s certainly no harm in going in for a tune up every now and then. 

Jennifer

Especially in the midst of a divorce when you’ve got such a big life change happening.

Dr. Robb

Divorce is super stressful and often something parents have no skill at; they’ve never been divorced before. They don’t know what the process entails. Find a therapist who has experience dealing with that. I’ve seen therapists do harm to families because they don’t understand the difference between marital therapy and divorce therapy. 

I see records about what’s happened historically.  Things are going badly now, but what happened five years ago that brought us to this point? What happened in your background? People don’t spring fully formed from the head of Zeus like Athena in the mythological stories. They have a place that they came from; they view things the way they do for a reason

Jennifer

All of this information is tied up in a final report, and as a divorce lawyer, of course, I’ve had the benefit of seeing that report.

Tell us a little bit about what the final custody evaluation report contains and what people do with that.

26.56

Dr. Robb

A good report contains an outline of everything the evaluator has done—who they’ve talked to, who they’ve gotten records from, who they’ve interviewed—the whole process is outlined. Then you’ve got summaries of that data. “Here’s what Parent A told me. Here’s what Parent B told me.” 

There’s a balance in terms of thoroughness and a good summary. It’s the old George Carlin joke about how “Everybody who is going faster than you on the highway is a maniac, and everybody who is going slower is a jerk.” You have to balance that out. Everybody’s going to have a different style, but the goal is to summarize the points that are salient to the court. I can tell you that stepparent said the exact same things as the parent that they’re married to in about two sentences. I don’t need to rehash everything.

A good report also spells out conclusions. It’s like math; you have to show your work. We had these data points, and we came to these conclusions based on it, and those conclusions led to these recommendations. You can disagree with the logic sometimes, but at least you understand how you got there. That shouldn’t be a mysterious process for anybody.

Jennifer

And as an evaluator, you’re making recommendations as to possession and conservatorship, and parenting time.

Dr. Robb

Yeah. And the older I get, the more I tell people parenting time is often like rearranging deck chairs on the Titanic. If the boat is going to sink, whoever had the first-class seat when it went down is not the issue. It’s about whether a kid is failing in school or a kid is struggling with suicidal ideation or their own drug abuse. A lot of times those are the critical issues. Then the parenting time arrangements fall out from there. 

Even your basic expanded standard access plan, depending on how you count overnights and awake time and who’s in school and work. If you’re a parent who works from home with a flexible schedule, and you’ve got an expanded standard schedule, you may be seeing your kid more than the primary parent. That’s usually what folks are fighting about; at the end of the day, they want the t-shirt that says primary parent. I always put in my reports that the primary parent is the one who should be able to designate the child’s primary residence for school or for the city softball league, etc. It’s not so much about who’s the primary parent; it’s what address you’re using for those kinds of things.

What message of hope do you have for families facing a custody evaluation?

30:17

Dr. Robb

In the end, parents love their kids, and the evaluators know that.  They’re not there to take the kids away. I see so many parents who think, “I’m going to have my kids taken away from me.” No, we’re going to allocate some parenting time. This is not sending the kids into foster care. This is not the state terminating your parental rights and putting them up for adoption. 

Divorce means change. It means you’re going to have a different schedule, and it is going to be hard for a lot of people not to see their kids every night to tuck them into bed. But that is part of the reality that they’re facing, and kids do well if parents approach divorce in a healthy way. Even if only one of the parents is taking that healthy approach, if you can be that healthy co-parent, your kids will benefit, and the evaluator will see those things, hopefully.

Jennifer

That’s a great message. Thank you so much.