In a disputed
child custody or parenting time (commonly known as visitation) suit, judges make decisions
that have life-long effects on a child and his or her family. To ensure
that judges receive complete information and are acting in the child's
best interest, either the parents or the court may seek the assistance
of an expert witness or child advocate.
Generally, the expert witnesses are known as child custody evaluators,
and the advocates for the children are known as Guardians Ad Litem (a
"GAL"). Custody evaluators and GALs attempt to help a court
make decisions in the best interest of the child, but their roles and
expertise are different.
Custody Evaluators: Neutral Expert Witnesses
In most lawsuits parties may hire an expert witness to support their position.
In child custody cases, the parties may request, or the court may appoint,
a neutral expert witness called a custody evaluator. The evaluator will
provide an opinion as to what legal orders would be in the child's
Custody evaluators are usually mental health professionals, such as a psychologists,
psychiatrists, or social workers who have advanced degrees with training
in child development issues. These professionals also have specialized
training in custody evaluations.
Once appointed by a court, an evaluator will conduct an investigation to
develop a factual record and form a professional opinion. This type of
investigation is comprehensive, giving the evaluator a much more complete
picture of the parties, their respective parenting skills and weaknesses,
and the overall history of the situation.
For example, the evaluator may take any of the following actions:
- Interview the parents and have them complete comprehensive questionnaires
regarding parents' roles in the family
- Interview the child
- Watch each parent interact with each child
- Interview the child's teachers and coaches or other important people
in the child's lives
- Have the parents submit to personality testing, intelligence testing, and
mental health screenings
- Have the parents submit to drug tests
- Conduct criminal background checks on the parents
- Review court files to verify each parent's consistency in statements
to the evaluator against statements made in legal pleadings and declarations
- Request the parents to release their medical and mental health records
and those of the child
- Review the child's educational records
- Review each parent’s employment and financial records
- Conduct home visits
The evaluator will analyze the results using his or her child development
training and knowledge of legal standards for custody and parenting time.
The evaluator will then develop a comprehensive opinion as to what custody
and parenting time orders would be in the child's best interest.
Because an evaluator is intended to be a neutral witness, courts will frequently
follow all or most of the evaluator's recommendations.
Typically the parents share the cost of the evaluator's fees to conduct
an evaluation, which can run from $4,000 to $8,000. If either parent intends
to call the evaluator as a witness at trial, he or she will be required
to pay the evaluator's professional hourly rate to testify.
Guardians Ad Litem: Children's Advocates
Many jurisdictions also permit the parties, the court, or a child involved
in a custody and parenting time dispute to request a GAL. Unlike evaluators,
who adopt a neutral role, GALs are adults who act as legal representatives
for the children in the proceeding. Like the parenting evaluator, the
GAL investigates facts and then develops an opinion advocating for orders
in the child's best interest.
GALs are often lawyers who have family law experience or special training
representing children, but GALs can also be non-lawyers with specialized
training advocating for children. All GALs in Washington State must maintain
information with the State detailing their educational training related
both to child development and disabilities and to issues children face
in divorce. Washington State GALs must also submit to criminal background checks.
Like the authority given to evaluators, GALs have the power to conduct
investigations and obtain information. A GAL will develop a report highlighting
evidence developed during his or her investigation and present arguments
to the court as to what decisions it should make. If the parties disagree
with a GAL's conclusions and opinions, they may file papers objecting
to various findings or to the qualifications of the GAL who made those opinions.
Like evaluators, GALs are typically paid for equally by the parties. A
court may, however, order an unequal payment. Generally, because a GAL
does not have advanced mental health degree and is not tasked to do a
comprehensive evaluation, a GAL's participation in the case usually
costs significantly less.
How a GAL Differs from an Evaluator
Unlike evaluators, GALs do not usually have the same formal educational
training to distill their information into a formal expert opinion. This
lack of expertise may make it easier for a party to successfully attack
a GAL's opinion.
A GAL also tends to be a more active advocate for the child, somewhat like
the lawyers for each parent. For example, in a contested hearing, a GAL
might appear in court and act as an advocate for the child and present
arguments as to orders the court should make. An evaluator, on the other
hand, would only serve as a witness whose testimony and opinion could
be considered by the court.
A GAL also may report and advocate for the child's preferences in the
case if the child has the ability to comprehend the issues. In contrast,
because an evaluator is not a child's advocate, he or she may consider
a child's preferences but not give any special weight to that preference
over other factors in recommending orders in the child's best interest.
For more information, contact a
divorce attorney at McKinley Irvin, or read more about
7 Tips for Establishing a Parenting Plan in a Divorce.