November 4, 2014
In this installment of our family law practice series, we come to a subject that causes perhaps the greatest amount of difficulty for attorneys that aren’t well-versed in the matter: third-party evaluators.
“Third-party evaluators” here means guardians ad litem and custody evaluators, and their roles are quite similar: they are both appointed by the court to conduct investigations about the case in order to make recommendations about custody and parenting time. These recommendations carry quite a bit of weight – more often than not, more weight than the arguments presented by either party. Furthermore, these evaluators can consider evidence that would normally be inadmissible in court.
Because of these deviations from the norm, it’s easy to see why these individuals present such difficulty to attorneys who aren’t familiar with them. And since making a mistake when dealing with one of these evaluators can have severe consequences for your case, it’s important to know what you’re doing.
So how do you deal with them?
In addition to the more general practice tips covered earlier in this series, there are some more specific tips to this end.
First, you need to talk to your client about the evaluator – what his/her role is, the kinds of things that s/he will be doing, and that the evaluator isn’t on anyone’s “side;” s/he is only supposed to represent the child/ren’s best interests.
But that’s not the end of it.
You also must counsel your client to be honest with the evaluator. It’s more likely than not that the evaluator will uncover the truth during the course of the investigation, and any attempt by your client to conceal any fact will only make him/her appear untrustworthy to the evaluator. You can talk to your client about how to present certain facts that are unfavorable to the case, but this presentation should not include deception or concealment of any kind.
The same rule applies to what your client says to his/her kids. That is, your client should never, ever coach his/her kids on what to say to the evaluator. The evaluator will very likely know a coached child during an interview, and the last thing that you want the evaluator to believe is that your client is telling the kids what to say when they are interviewed. It raises the evaluator’s suspicions that your client is trying to hide something, and it makes your client look bad that s/he is dragging the kids into the middle of the parents’ dispute.
You may explain to your client the proper way to discuss the evaluator with his/her children: that this special person is going to come by and ask the kids some questions about them and the family, and to just be honest with this person. Do not have your client discuss the dispute in detail, nor have him/her tell the kids about any allegations that either of the parents has made against the other.
Your client should also understand that any parenting advice or feedback should not be taken defensively. The evaluator is giving this advice to your client because s/he has the children’s best interests in mind, and if your client were to get defensive or belligerent in response, it may appear that the children’s best interests aren’t of paramount important to your client. Instead, your client should understand that feedback is welcome because he or she is, naturally, always trying to be the best parent possible.
There’s actually a lot more to preparing your client to deal with evaluators, but these tips should provide a basic framework (if you’re interested in a more detailed discussion, a CLE that I’ve presented on this subject is available on the West LegalEdcenter).
Next week, we’ll be covering what you as the attorney can do to increase your chances of success in working with third-party evaluators.