Do you find yourself involved in a child custody dispute (whether in a divorce case or a parentage/paternity action?
If so, has your spouse or your attorney may have proposed a custody evaluation be conducted?
If so:
– have you conducted your own independent research into custody evaluations and discovered that they usually take a long time (at least three months, but usually far, far longer) and cost a ton of money (at least $3,000 and can run into the tens of thousands)?; and
– have you determined that custody evaluations are pseudo-scientific and the “findings” and recommendations so subjective that they don’t justify the expenses of time and money and effort they require?
Is there a viable alternative to a custody evaluation?
Yes, not just a viable alternative, but a superior alternative.
A more expeditious (but just as evidentially reliable, actually more reliable) alternative.
We all (court and parties) deserve to know and can know exactly what the children have experienced, observed, what and how they feel, what their opinions and desires are, and why–and in the children’s own words and feelings, not from someone else.
Ironically, we can gather all of the information that a typical custody evaluation gathers (even psychological evaluations for parent(s) and children, if anyone asserts they are needed or warranted) much faster if we simply cut the evaluator out of the process.
In less than 3 months:
– the children can be interviewed by the court, on the record[1];
– in advance of trial, both the parents and any and all of the typical custody evaluation collateral sources can be deposed as to the questions asked of such witnesses in a custody evaluation context in less than 3 months.
– If anyone wants any psychological evaluations or tests conducted, we can start those immediately and also have them done.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] A second-hand account (whether spoken or written), as opposed to the sound-and-visual record of a first-hand account, lacks what permeates the words with meaning and ensures a more correct understanding of what and how questions are both asked and answered (e.g., intonation, emphasis, voice volume, changes in voice patterns, pauses, and facial expressions and body language). This is indisputable.
I have really, really tried to find validity in the reasoning behind the belief that an interview of a child that the child knows to be recorded increases the risk of the child being less truthful than if the child is interviewed knowing there is no recording of interviews. It does not add up, if for no other reason than this idea requires us to accept premises that are unproven, patently false, and/or logically invalid. For example:
1) that a hearsay account of a child’s interview is somehow not a “record” of sorts (albeit one that is patently less complete and less accurate than a mechanically recorded interview). So I do not know how or why we try to dupe ourselves and a child into believing that just because a child’s words were not sound-and-visually recorded his statements (or an unverifiable second-hand summary thereof) will somehow not get back to the parents when the evaluator shares his second-hand account of the interview with the parents in court. Otherwise stated, not recording a child’s interview does nothing to put a child at ease, but only results in less reliable evidence.*
2)
(a) that recording the child’s interview traumatizes the child by virtue of recording it.
and
2)(b) that minor children are more inclined to lie if recorded (or more likely to tell the truth if not recorded).
I cannot find any evidence to support such assertions in the context of child custody cases. Maybe I haven’t looked hard enough, so if anyone knows of any objective proof that children are more inclined to lie if recorded, would he/she/they please forward it to me? I have personally deposed minor children without incident, and without anyone claiming the deposing of a child traumatized the child or caused the witness to lie or otherwise be untruthful. Thus, my actual experience does not square with claims to the contrary.
An alleged second-hand account of what a child is alleged to have been asked and what the child is alleged to have said in response (better known as garden-variety hearsay) requires us to believe (instead of having the proponent of the evidence prove) that the second-hand account is a) complete, accurate, unflawed, and unbiased; and b) based upon a complete and competently conducted interview.
Indeed, the only research I could find at this point shows that people tend to behave more ethically and truthfully when they know they are being observed or recorded (i.e., the “Hawthorne effect,” where individuals modify their behavior in response to their awareness of being watched).
*This is the point where I submit the elephant in the room becomes impossible to ignore (this is my opinion, but my sincere opinion born of years of experience and observation, expressed with due respect):
The only way I can make cohesive sense of why there is so much opposition to hearing from the child (who has the greatest stake in the outcome of a child custody case) directly on the record and why there is so much support for not just accepting, but for insisting upon nothing but a second-hand account of a child’s testimony is by reaching this conclusion: because the evaluator/PGAL (private guardian ad litem)/second-hand source is a fallible human, beset by lapses of attention and memory, and affected by biases of which he/she may not even be aware.
Because there is no objectively verifiable record of the child’s testimony, one can much more easily cite the defects from which a second-hand account inherently suffers as a reason to cite selectively to what one does and does not find (or want to find) credible or persuasive (i.e., “Perhaps the evaluator/PGAL/second-hand source wasn’t paying close enough attention to what the child said or meant [in the entire interview] [in this particular part of the interview].” Or “I disagree with the evaluator’s/PGAL’s/second-hand source’s interpretation of what he/she claims the child said/meant.”)
Interposing hearsay (with all of its built-in credibility defects) between the child’s testimony (that could have been sound-and-visually recorded but deliberately wasn’t) and the factfinder provides a level of plausible deniability as to the accuracy and credibility of the second-hand/hearsay account that a sound-and-visual recording does not permit. Otherwise stated, “Because we have no objectively verifiable record of what the child was and was not asked and what the child did and did not say, we’ll never really know what the child was and was not asked and what the child did and did not say, so the second-hand account of the alleged child’s interview can easily be dismissed in whole or in part on that basis.”