Sunday, November 15, 2009

From Fayette County: Contacting the Custody Evaluator Local Rule

This rule ties in with the Local Rule discussed in Fayette County: Local Rule on Custody Evaluators.


In the event a custodial evaluation is ordered by the Court, the Court shall direct the parties to contact the custodial evaluator to arrange for an appointment with the custodial evaluator. Other than making contact with the office of the custodial evaluator to arrange for the client’s appointment with the custodial evaluator, counsel shall not initiate contact or otherwise communicate with the custodial evaluator until the custodial evaluator’s report has been issued. Prohibited contact or communication shall include the sending of school records, medical records, affidavits, reports, or any other type of written record by the attorney to the custodial evaluator. Information which may be requested by the custodial evaluator shall be delivered or otherwise presented to the evaluator by the party and not counsel. In the event the custodial evaluator should contact counsel before the evaluator’s report has been issued, such fact should be promptly conveyed to opposing counsel indicating the specific dialogue between counsel and the custodial evaluator. Following the issuance of the evaluator’s report, the evaluator shall be deemed a witness and counsel shall be permitted ex parte communication with the evaluator at counsel’s/client’s expense.

So far, I have not seen a similar rule in Indiana. I suggest careful reading of how the rule forbids either attorney communicating with the evaluator. Such a serious prohibition arouses my curiosity at the implicit fear that counsel might be attempting to unduly influence the evaluation.

While the rule states the evaluator becomes a witness, it is unclear to which party the evaluator belongs - petitioner or respondent. If one party makes the motion for a custody evaluation, the evaluator clearly belongs to the party making the motion. However, what if the court makes the motion?

If you forget that these evaluators cost money, the rule has its subtle reminder for you. These evaluations are not provided at public expense.  However, I am wondering who gets accessed the costs if the court makes the motion.  I assume the court will put the cost on one or both of the parents.

It may be worth taking a look now at  IC 31-17-2-12(a):
In custody proceedings after evidence is submitted upon the petition, if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by any of the following:
(1) The court social service agency.
(2) The staff of the juvenile court.
(3) The local probation department or, if the child is the subject of a child in need of services case under IC 31-34, the department of child services.
(4) A private agency employed by the court for the purpose.
(5) A guardian ad litem or court appointed special advocate appointed for the child by the court under IC 31-17-6 (or IC 31-1-11.5-28 before its repeal).
Let me say that the list is not exclusive (see the use of 'may" instead of "shall").  As to each of the statutory options, I am not aware of a court social service outside of Marion County.    As one of our local judges said to me last week, the juvenile court would be more likely to say its staff was overwhelmed with its usual work and there is no money in the county for guardians ad litem outside of CHINS cases.  I suspect our probation department and department of child services lack the personnel to add custody evaluations to their job descriptions.  As for private agencies, and I know of none in this part of Indiana employed by any of our courts.  That leaves private agencies employed (meaning paid for) by our clients.  The last custody evaluation I had was from Delaware County and cost $3,000.00.

I make some of these points as a prelude to a post that has been kicking around in my head for a while about custody cases and the costs involved.  I hope later this month to have that article written.

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