Michelle O'Neil:
All right, welcome back. Michelle O'Neil here with O’Neil Wysocki.
I'm joined by Michael Wysocki, my partner and Ryan Segall, one of our
lawyers at our firm. We're going to talk to you in this session about
child custody evaluations. So a couple of years ago, Texas passed some
new laws about child custody evaluations. That, at least in my experience,
has really kind of dramatically changed how we approached them. They even
changed the name of them. We used to call them social studies and now
we have this long term child custody evaluation. So this a 30 minute segment,
we're gonna talk about how the new laws have affected how we're approaching
child custody evaluations and some strategies for dealing with them. Even
what to do if you lose the custody evaluation. So you want to kick us
off? Who wants to kick off? Ryan, you want to talk about what the differences
are and what's new?
Ryan Segall:
Well so what I like to talk with about the clients is what this whole thing
entails, right? Because they're like, I don't know what this is. I tell
them, look, this is going to be a long process. It is not a short process
by any stretch of the imagination. This is a process that is going to
take several months, in some cases, years. I know we've got a case right
now, Michael, that custody evaluation is probably gone on for about close
to two years now.
Michelle O'Neil:
I've got one that's gone for two years.
Ryan Segall:
And so when I sit and talk with the clients, I tell them, this is what
you need to prepare for. And we talked in the last segment about journaling
and everything like that. All these documents that you have amassed need
to be provided to this custody evaluator because here's what they're gonna do.
They're gonna come into, they're going to talk with you, they're going
to talk with the child, they're going to talk with ancillary sources that
are going to talk with the opposing side. They're going to visit your
home, things like that. And you need to be prepared for that because if
you're not prepared for that, then you are not going to get a very beneficial
custody evaluation. I think it's important to tell the client how to interact
with the custody evaluator because I think it's very important. You don't
want the client to be barraging this person with constant emails and constant
binders and everything like that. You need to strategically give them
at certain times documents that will help your case, but you don't want
to overwhelm them by any stretch of the imagination. The other thing that
I always tell them to do is make sure that you are being the better co-parents
and I might be jumping ahead here a little bit, but making sure that you're
showing how you've attempted to co-parents, whether it be small little
things, which are instead of saying my child, it is our child. And I have
heard countless evaluators say that that is a sticking point for them.
Michelle O'Neil:
Or worse, their child.
Ryan Segall:
Right that is the worst one, right? I mean all these factors are things that the clients need to know when you first discuss the possibility of a custody evaluation. Because I think if the client is prepared for these things, they're going to be able to go in to court and to this custody evaluation with the knowledge of what to expect and setting their expectations. I mean, heck, that's 90% of our business.
Michelle O'Neil:
Well, of course. I think one of the big things about the new custody evaluation
laws is that it restricts the universe of people who can offer an opinion
about custody. So it used to be, before this law, it used to be that any
old treating mental health professional could come in and say, well I
think this person should have custody and then you can bring in the medical
doctor and say, who do you think should have custody? And now it restricts
that down and requires that if you're going to offer an opinion about
who should have custody of a child, that you have to have complied with
this custody evaluation statute. So for me, I think one of the big things
about the law is that it has eliminated a lot of the noise of other people
and other professionals kind of opining about custody. Have you seen that
Michael as being an impact in your cases?
Michael Wysocki:
Yeah, the pool of individuals capable and/or willing to provide child custody
evaluations has dramatically decreased. And you do not see very many new
people throwing their hat in the ring either.
Michelle O'Neil:
Yeah. And that's because the qualifications have gone up. You have to have
a lot more education and go to some seminars and things like that, have
training, to be able to even do one. And then you have what I see are
these treating mental health professionals who are now scared to, where
is that line? Where is it when I'm actually saying a custody recommendation
versus not saying one, like where is that boundary line? And a lot of
mental health professionals are even scared to of get even close to that
because of violating the statute.
Michael Wysocki:
And are just unwilling because they don't want any confusion as with regard
to their role. And so again, all these things come together to create
as perfect little storm that limits the number of people willing to jump
in the ring. And then what that does is it limits your pool and so in
general who the individuals in your jurisdiction are who perform these
types of valuations, which innocence is good, it helps you in advising
the client as to what to expect from a given evaluator. For instance,
we know which evaluator can probably turn a report around in six months
versus one who, if you're lucky, they'll turn a report around in two years.
If you're lucky.
Michelle O'Neil:
Do you find that to be a strategy point that you can use for your advantage
one way or the other?
Michael Wysocki:
You know, absolutely. For sure. If you have a circumstance where you, for
instance, obtained a significantly favorable temporary order, obviously
a child custody evaluator who's going to take longer may not necessarily
disadvantage your client. However, if it's a circumstance where perhaps
you don't believe that temporary orders came down as you had hoped, but
you think a child custody evaluation can help ferret out some of the issues
that you didn't have time to get in front of the court to assist the court
in making the court's determination on temporary orders. A child custody
evaluation can help ferret out some of those issues quickly and perhaps
get them back in front of the judge on a final to give you a better shot
at turning that temporary orders ruling around. You might want someone
who's quicker and plenty capable of getting a report turned around and
back on the judge's desk to say, Hey judge you didn't have time at temporary
orders to see all this, but perhaps if you had seen all this, you would've
made a different decision because I think the decision should be this.
There's a lot of things to take into consideration and well whether or
not one to request a custody evaluation, but two, who you should suggest
performs that evaluation.
Michelle O'Neil:
One of the things that I find beneficial from a strategic point in dealing,
just even in drafting the order appointing the custody evaluator, now
it allows us to ask questions that the custody evaluator has to answer.
So it's not just the form order and kind of the normal like parenting
skills questions, but you can actually ask questions that the evaluator
has to answer. So what I've found that I like to do, especially in a modification
suit, is ask in those questions the things that might be relevant, like
if parental alienation is something that your client believes is happening.
Ask in the question, do you find that parental alienation is happening?
If there's a question of whether there's a change of circumstances, like
kind of that applying the legal standard to the facts has the circumstances
of the child changed significantly enough to warrant a change in their
residence or something like that. I find that there's some advocacy that
can happen even just in the drafting of that order by asking those questions.
Ryan Segall:
Do you think that that question about the material change in circumstance,
they can give an opinion on?
Michelle O'Neil:
I think you have to word it carefully. I don't think they can give an opinion
on the legal standard, but I think you can ask them what changes they
find are affecting the child. In other words, you're going to the materiality
question, creating facts and evidence that effect that materiality question
because it's not just any change of circumstances that'll do, it has to
be a material or a substantial change. For example, just because one parent
gets remarried to a new spouse, that can be a material change of circumstance,
but it doesn't necessarily have to be. So kind of getting the custody
evaluator to pinpoint changes that are significant that are affecting
the child is a way to bridge that gap between the legal standard versus
the factual standard. Another thing that I think is impactful in the change
in the law is this kind of laundry list in the statute of things that
the custody evaluator must do. The checklist of things that the custody
evaluator has to complete in order for the custody evaluation to comply
with the law. I think there's again, a lot of lawyering that can happen
in this list, but to start with, don't you think that's one of the things
that's making these things a little more complicated and lasts longer,
take longer to finish than it used to?
Michael Wysocki:
Yeah, for sure. Obviously no evaluator wants their report found to be an
admissible or thrown out on technical reasons. So you see your evaluators
at least making attempts to be more thorough, given the way that the statute's
not laid out.
Michelle O'Neil:
I think also, like for example, the requirement in the rule for balanced
interviews. Before the law actually said that, before the law required
balanced interviews, we would often see where a custody evaluator might
spend a whole lot more time with one party than the other. So I think
that's maybe one of the things that's a good thing about the law is the
requirement that it be balanced and therefore that both parents have that
kind of equal time. But I also think that this is a place where it can
kind of get out of hand. I mean, if you've got one person that's very
wordy, then the other parent gets equal time. So that can maybe get out
of hand. How do you, Michael, when you're starting, and I want to talk
before we're done, about whether you even asked for custody evaluation,
but let's start with, we're assuming we're having a custody evaluation.
How do you as a lawyer approach providing information to the custody evaluator
relevant information. Do you do that? Do you have your client do that?
How do you approach that?
Michael Wysocki:
Well both. The way I look at it is real simple in the way that I try and
get my clients to look at it is a little simple as well. When you think
of yourself, if you were given a task to make a determination of who to
give a contract to. Let's say you were the person at your job tasked with
who deciding who to buy furniture from and one person comes and provides
you a disheveled stack of this is the stack of all these random documents.
These are all the different furniture options we have. And then the next
person brings in a nice, bound, clearly laid out catalog with tabs and
a different sections. One with tables, one with chairs, maybe this person
over here with everything that's all disheveled actually has the best
stuff. But this other person over here laid it out for you in a clear,
clean, concise, easy way for you to go through it. Well, which one are
you actually going to take the time? Any of us gonna take the time to
actually go through that disheveled stack of options. I mean, we might,
but probably not and so what I like to tell my clients is look, it's just
like with anything else in life, most often human nature is to travel
down the path of least resistance. And so in a custody evaluation, we
need to make a path that we want the custody evaluator to go down to be
a path that's easy. You want them to read a bunch of messages. Okay, well
let's organize them. Let's make them clean, let's make them concise. Let's
do a cover letter with them that says the relevance of them and highlight
them. So that way if it's multiple pages, they know, well these are the
various highlighted portions are the ones that are most important and
so I oftentimes have clients gather information for me and then what we
do is we assist the client and putting them in and organizing them in
a fashion that makes them easy, much like that catalog of furniture, for
the evaluator to go through and pick out the nuggets of important and
relevant information that relates to the children.
Michelle O'Neil:
I'm sure for an evaluator, one of the worst things they can see coming
is just like the onslaught of documents of here's all the text messages
for the last five years between these people. I'm sure the evaluators
are like, Oh gosh, so maybe doing summaries and like you said, tabbing,
highlighting, things like that.
Ryan Segall:
And you have to be careful as well that they don't over, not only overshare,
but overload them with information. There is going to be a difference
between maybe not getting notice of a doctor's appointment versus maybe
they were a little, their clothes were a little tight or a little baggy.
You have to pick and choose your battles and you don't want to necessarily
show everything that this other parent has done for the last five years
versus picking and choosing, okay these are the important points that
we want to focus on. And making sure that, as Michael said, kind of getting
the custody evaluator towards those points. Because that's going to be
another issue as well because they're going to, I mean I've got this in
a case that I had in which the custody evaluator said, your client makes
mountains out of mole hills essentially. And that was kind of the big
knock on them was they're making this big deal of these little things
and at some point the custody value is going to say that and that may
affect his or her evaluation yet.
Michelle O'Neil:
So how do you advise clients to balance between focusing on the negative
qualities of the other parent as the reason why they want custody versus
focusing on their own positive qualities? Because obviously there's some
amount of communication of both of those that has to happen, but how do
you get clients to balance that?
Ryan Segall:
It goes back to the organization for me. It goes back to here's maybe two different binders, one binder with this is everything that shows all my good qualities and hopefully the binders are relatively the same size, but some sort of organization to help that custody evaluators see, Hey this is what my client's been doing versus what the other side has been doing during the same time period. Because showing them that, again, that's going to go to that whole to co-parenting, which is a huge part of these evaluations as to how the other person gets along with the other person. I think that's even in the statute there, as far as balancing those things and making sure that the client isn't just dragging the other person over the coals the entire time because they've got to show not only what's happening, especially in modifications, as to what's wrong with the status quo and why we're trying to flip it.
Michelle O'Neil:
What do you think about that, Michael, as far as that balance of saying
negative stuff about the other side versus positive stuff about your own side?
Michael Wysocki:
Sure. So much like the factors that the court looks at, if the court were
making a determination as to who primary conservatives should be or whether
or not to have joint managing conservators versus a sole conservator.
A child custody evaluator is going to look at the same or similar factors
as the court would. And much like we discussed earlier, one of the factors
that they're going to look at is whether or not the person requesting
to be the sole or the person requesting to be the primary conservator
is a person who can facilitate a relationship between the other parent
and the children, support the relationship that the children have with
the other parent, as well as create an environment that the parents are
able to, or at least able to attempt to be positive co-parents. So while
you want to provide obviously, information to the evaluator that shows
the evaluator the things that the other parent may not be doing appropriate
or bad acts that that parent may be engaging in. But you also want to
do it in a way toward the evaluator knows that you're not doing it in
a disparaging way so much as you're doing it in an informative way to
keep the option open in the evaluators mind that while they're providing
me this information, but they're not foreclosing the idea in my head that
they can still be a positive co-parent with that parent. So much as that
they recognize the faults of that parent and they recognize how those
faults may play into their co-parenting relationship and so a good example
of that would be like if you had a best friend who was an alcoholic and
you understanding that a family member that was an alcoholic. That if
you go around so-and-so is just a drunk and that, this and that and dah, dah, dah.
Or if you acknowledge, John has a drink problem. And so what we do is when
we go out to eat, we go to places that don't serve alcohol or if we're
going to have dinner, we don't put alcohol on the table. Same thing in
a situation with an evaluator, you choose how you're going to handle that.
Are you going to handle it, the mom's a worthless drunk, druggie, adulterer.
Or are you going to say, evaluator, I know that my children's mother has
problems and I recognize those problems and here's what I've done too
with regard to the children to try and navigate those problems while still
maintaining inappropriate relationship. Obviously, in my opinion, the
latter route is the best route.
Michelle O'Neil:
Well, and I think you make two good points. I mean one is always focus
on the child and that's what I try to tell my clients is if you're going
into this interview with the evaluator of just trying to take out the
bat and beat the other parent up, that's going to become obvious to the
evaluator that it's all about this relationship with the other parent.
Where if you go into the meeting with the evaluator child-focused and
I say the same thing about hearings in testimony, like always focused
on the effect on the child. Whether they're out there with 15 mistresses
or drinking every day or whatever. All of those things may or may not
be relevant, but it's how it affects the child. The child was embarrassed
when their mother showed up at the T-ball game drunk, the child was embarrassed
this, the child was affected that, and so to me, you always look better
when you're focused on the child. As opposed to just going in there saying
negative stuff about the other parent. I look at it as like in politics
season, whenever it's presidential election time and all the ads are on
TV. Which ads are we normally just drawn to, you're drawn to the positive
ads, the ones that focus on the positive quality of the candidate. Is
it necessary for the candidates to say some negative stuff? Yeah, but
tell me how that affects me. Don't just sit there and say, that other
guy's a piece of crap in your political ads. Same concept here. Don't
just go in there trying to beat up the other parent or tell the evaluator
as if the evaluator is the determiner of who's right and who's wrong.
Always focus it back on the audience and how is this affecting the child?
That's what I think. So then I'm kind of taking the ball a little bit
farther. You have your custody evaluation, everybody's done their part
and done their best to present their best foot forward and outcomes the
report. And somebody has a lot of good things said about them and somebody
has a lot of negative things said about them. So what as lawyers, what
do you do next? If you lose the custody evaluation, what do you do next?
Michael Wysocki:
Well, the first place to start is obviously the statute. The statute, as
we pointed out earlier, lays out a framework within which the evaluator
must work and things that the evaluator must do, must evaluate and if
those things were not done as we talked about earlier when I said no evaluator
wants their report kicked out on a technicality, well you start looking
for those technicalities in order to get that evaluation excluded. Not
just the statute. You look at a number of external factors as well that
may not be explicitly listed in the factors to attempt to challenge the
expert report. Sometimes referred to as a Daubert challenge to say that
this evaluator did not comply with the standards set forth or the standards
that we would expect an expert to comply with in this state or this jurisdiction.
And challenging a report under those circumstances can be successful.
Ryan Segall:
So going off that, take it one step further. So once you get, let's just
say that they have met the statutory guidelines, let's go into where they
got their information, right? Cause the evidentiary rules are still going
to apply for this report. So talk about what sources they use and the
reliability of those sources. Because if you have an evaluator who's just
using, let's say dad's friends and we're representing mom, well of course
they're going to say certain things about a that are good for one side,
but how reliable is that information? The other thing that I like to do
is go through that report and there's usually going to be some positives
about your client pull those from the report. Just because the evaluator
has an opinion as to who should be primary, that doesn't necessarily mean
that the court is going to reach that same conclusion. And if you can
hammer some of the points in that evaluation, that can certainly lead
to a beneficial outcome for your client.
Michelle O'Neil:
yeah. I think that one of the things that I, my personal approach is to
never give up because you may get a negative recommendation in the report,
but like you said, there's going to be some positive things said in the
report about your client and you can focus on those. But also just never
give up because I've had two cases, one for me and one against me where
in the middle of trial the expert actually flipped their recommendations.
And so never giving up I think is one of the keys of just continuing to
kind of reemphasize the things that are important about the case. I had
a situation recently talking to what Michael was saying that going through
the requirements of the statute, I had a report that was about to come
out and I had uncovered the fact that the evaluator had not spoken sufficiently
to one of the very important treating experts, treating physicians. And
that treating physician had told me that some information that needed
to be given to that evaluator, that the evaluator hadn't asked for it.
So anticipating that the report was almost going to come out, I sent a
letter to the evaluator saying, Hey this guy has some information that
you need to know and here it is. I had a deposition transcript and I'm
like, here's some information from this deposition and affirmatively gave
it to him. Well, the evaluator got a little fussy at me about sending
her information after she'd already closed receipt of information. But
she also, I think, was concerned enough about her checking all the boxes
under the statute that she actually reached back out to that expert that
I wanted her to reach out to and received the information. So I think
that's an example of maybe being proactive before the report comes out,
if you know there's some things that haven't been performed and setting
it up because if she hadn't done that and if the report had gone against
me, that would've been my exhibit one in my Daubert motion complaining
that she didn't comply with the statutory requirements. So I think just
keeping at it, never giving up, always, always pushing forward on that
can really make a difference in the ultimate outcome. Even if the recommendations
themselves are against you, you can compare those recommendations to the
opinions that are given within the body of the report and show the differences,
the dichotomies of things that don't line up. If in the body of the report
it says that the parent is a good parent and stable and the child would
be fine with them, but then it doesn't recommend that parent get primary
custody. I mean I think that's a place where you can show these opinions
don't line up with these recommendations and use that as a cross examination
tactic. Another thing I just in the couple of minutes we have left that
I think is important in this statute that seems to actually be something
I'm having to talk about quite a lot lately with these evaluators is,
and you mentioned this a minute ago, that now the rules of evidence actually
apply to the report and to the evaluator in the past versions of the family
code, the evidence rules were a little unclear as to how they applied.
But now the new statute actually affirmatively says the rules of evidence
apply to this report, which means it's not automatically admitted into
evidence and if it contains hearsay or inadmissible information, then
that information has to come out and the report may not even go into evidence
at all. So I think those are a couple of things that are new with the
statute that can be very beneficial in how you approach a trial, especially
if you've lost a custody evaluation, you can keep out a lot of the negative
stuff about your client by using that rule, the evidentiary rules that
can kind of keep that stuff out. Alright, so we're at 30 minutes, the
end of session three on child custody evaluations. We're going into session
four winning strategies during the case all the way through trial. So
stay tuned. We're going to take a real quick break. We'll be right back.
Keep in mind that this is a webinar that's aimed at attorneys. This is
for continue doing legal education. If you're out there watching this
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Please, please seek the advice of a lawyer as to your specific situation
and get specific advice to that. Because if you rely on just what we're
talking about here, we're being general, we're talking about general legal
principles that may not actually apply to your situation. This is for
continuing legal education only and we cannot create an attorney client
relationship just through the video camera. Okay. Thanks.