Podcast: Establishing Physical & Legal Custody Under Minnesota’s Best Interest Standard

In this edition of The Family Law Show, we offer an overview of the standards Minnesota judges use in determining the physical and legal custody of children.

Custody is an emotionally-charged issue, with a lot of uncertainty for parents and kids.

Topics in this podcast include the difference between physical custody and legal custody, joint custody as compared to sole custody, the “best interest of the child” factors and the key facts judges look toward in making custody decisions.

Run Time: 12:52

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Give Yourself The Advantage: Tips For Dealing With Custody Evaluators

Child custody can be a controversial issue; it is common for both parents to want physical custody – or for one parent to seek sole custody over a joint custody arrangement.

The disagreements can go on and on, and that means the court has to intervene with the custody evaluation process. A custody evaluator is appointed, or hired, to review the situation and create a report that the court uses to determine what is in the best interest of the minor child.

It is best to cooperate with the custody evaluator in every way possible. How you interact with the evaluator is going to carry a lot of weight in the evaluation – even though the relevant statute doesn’t reference your conduct during the process.

Here are some things you should keep in mind when working with a custody evaluator:

  • They will sometimes make you feel that they are on your side. This is so you will put your guard down. Never ever make the assumption that the evaluator is on your side.
  • Keep in mind that they are human, and will react adversely to certain personalities. If you’re honest and open, then that is going to work in your favor.
  • The custody evaluator doesn’t care about who the good guys and the bad guys are. It is what is best for the child that concerns them.
  • Do not argue with the custody evaluator. You need to make eye contact and listen to them. You need to establish rapport with them, so it may help that you nod your head in acknowledgment of what they are saying. If you disagree, disagree nicely. You need to get your own points across so that they are considered.
  • Provide the evaluator with all supporting documentation, and any other documents that may be requested. It is also important to provide these documents in a timely manner.
  • If there are any collateral contacts, provide the evaluator with their names. These are individuals that are aware of your competence as a parent, and can vouch for the weak points of the other party.

About 95% of the time, the judge will adopt the recommendations of the custody evaluator. We’ve successfully tried many cases, however, in which we were able to discredit the opinion of the evaluator and gain an award of custody in favor of our client. Still, the odds are against if the report comes back in favor of your spouse. For obvious reasons, it is critical to have the custody evaluator on your side.

Discrediting Adverse Custody Evaluators

If you and your spouse cannot reach agreement on the legal and physical custody of your child, your matter is probably headed for trial. The court will be left to determine what is in the “best interests” of your child through the use of a custody evaluation and report. About 95% of the time, the court will adopt the evaluator’s recommendations - unless you have a strong advocate who knows how to challenge their conclusions.

Here are a few ways to discredit the custody evaluator at trial:

  1. Bias. In personal injury cases, the insurance company will hire a doctor to examine the injured. Insurers pay thousands of dollars (now you know where your premiums go) to certain doctors who are prone to rendering an opinion favorable to the insurance company. These “independent” experts are often discredited by the plaintiff’s lawyer bringing out the hundreds of prior opinions these physicians have rendered against injury victims. The same holds true in family court. Most custody evaluators have years of experience and have rendered hundreds of opinions. If there is consistency in those opinions, they carry a bias. Certain experts are prone to rendering certain opinions. Make the court aware of the bias of the evaluator and the recommendations may be discredited.
  2. Diligence. We’ve cross-examined custody evaluators who have spent less than an hour in the presence of our client and the children that are the subject of the action. How much can anyone learn about a familial situation in 60 minutes of observation. What if the kids were having a tough day? What if the parent is nervous about the scrutiny of the evaluator? What if the dog won’t stop barking? Think of it as a movie. If someone stopped ”Titanic” before the ice berg and never watched the ending, they’d think everyone arrived safely in New York and wouldn’t know the whole story. Evaluators are busy people. That haste can be taken advantage of.
  3. Qualifications. Just who is the evaluator in your case? Do they have Ph.D.? How many evaluations have they conducted? Who are they employed by? What is their degree in? Have they been subject to an action for malpractice or ethics complaints? Disciplined by a professional board? Are they a licensed psychologist? All of these questions go to the foundation of the expert’s opinions. Get them disqualified as an expert and the court cannot rely on their recommendations.

These same techniques can be used to discredit other court-appointed custody experts, such as a Guardian Ad Litem. No kidding – we had case in which the adverse Guardian had a degree in art history and failed to spend a single moment with our client in the presence of our client with the children (despite a statutory requirement that she meet with the parent in the presence of the children in the relevant home). We attacked her opinions on all three of the grounds referenced above.

Experts Involved In Divorce Cases

Depending upon the facts and legal issues involved in your divorce, a number of experts may play a role in your case, including a home appraiser, actuary, custody evaluator, business appraiser and vocational assessor.

The most common expert we employ is a home appraiser. In most cases the most valuable asset for division is the marital homestead. If one party elects to remain in the homestead we must calculate the equity in the house to determine the value of the property settlement. Naturally, the first step to establishing equity involves the determination of the market value of the property.

A typical homestead appraisal costs around $350. They take approximately one (1) week to complete. Many clients ask if a realtor’s market analysis can substitute for an appraisal. If the parties agree, a market analysis is sufficient. However, a realtor’s market analysis does not hold the same evidentiary weight as a certified real estate appraisal. For that reason, the appraisal is usually preferred.

Another expert we commonly retain is an actuary. An actuary is an accountant with specific knowledge on the formulas utilized to calculate the present value of various retirement interests. Aside from a house, the most valuable assets that the majority of couples possess are their retirement accounts. Some accounts, such as a 401(k) plan, are easy to value. A recent statement will tell us the value of the account. However, pension interests have a present value as well.

Suppose you are 40 years of age and your union pension indicates that at present you qualify to receive $1,000 per month at age 55. Those benefits, despite the fact they are not yet realized, have an economic value. It is the job of an actuary to calculate that value. Clients are often shocked to realize that their pension interest, in terms of present dollars, totals several hundred thousand dollars.

If the pension interest was accumulated during the marriage, it is subject to equal division. This may be done by a cash off-set or an award of future benefits to each party. If the cash buy-out is contemplated, then we must know the present value of the benefit. An actuary typically charges a couple hundred dollars for their services.

If custody is a contested issue in your case, a custody evaluator will be appointed by the court. This individual typically possesses a degree in psychology or social work. The custody evaluator will meet with each party individually, and meet with them in the presence of the children. They will gather documentation such as medical and school records involving the children. Custody experts often speak with counselors that might be involved with the family. Parents will often refer the evaluator to several acquaintances who can speak of their ability to affectively parent the children.

The process of completing a custody evaluation typically takes several months. Once all of the necessary information is gathered by the evaluator, a report is generated that addresses the information gathered in relation to the standard for an award of custody in Minnesota – the best interest of the child. These reports are often twenty (20) or thirty (30) pages in length and may include painstaking detail about the family situation. The final part of the evaluator’s report includes a series of recommendations. Most often, the court will adopt the recommendations of the evaluator.

There are two types of custody evaluators in Minnesota: court appointed and privately retained. There is no legal distinction between the two, but a private evaluator will typically charge more than $10,000 for their services. In some situations, a private custody evaluation will be done much more quickly than an evaluation conducted by court services. If court services performs the evaluation they, too, charge a fee. But it is typically much less than the fee associated with a private evaluation.

We frequently employ business appraisers to ascertain the present value of a business owned by one or both of the parties to a divorce. There are a number of ways that a business appraiser calculates the market value of a particular business. The evaluator will look at the overall business revenue, profits, assets and marketability of the business.

The cost for a particular appraisal varies depending upon the nature of the business being valued. In most situations, a business appraisal will cost between $5,000 and $10,000. Once the appraisal is concluded, the evaluator will present a written report. The report will include the various formulas utilized for determining market value and offer an expert opinion concerning the value of the business based upon dozens of factors that have been taken into account.

In cases involving spousal maintenance, we often employ a vocational assessor. This individual is asked to evaluate a spouse’s capacity for employment and potential annual earnings based upon their educational background, skills and the market place. The person being evaluated will be asked to spend the day with the vocational assessor. An interview takes place and the individual is asked to complete a series of psychological tests, including the MMPI and other skills tests.

Once the evaluator has opportunity to get to know the individual, they will generate a report that discusses the skills and abilities of the individual, along with a host of potential careers that are available to them. The assessor we retain will take into account market conditions specific to the Minneapolis area. A vocational assessment typically costs approximately $1,500. The conclusions drawn by the assessor provide significant evidence for the court to consider in light of a request for spousal maintenance.

The foregoing experts are the most frequently retained individuals to assist our clients through the divorce process. Certainly there are others, such as vehicle appraisers, psychological experts, chemical abuse experts, accountants and others. The costs associated with retaining many experts is substantial. For that reason, we work very closely with our clients to balance the costs of the involvement of an expert against the benefit that we hope to realize in retaining that individual.