As a divorce attorney,  we represent parties going thru a divorce with issues such as property disputes, custody disputes, and other related issues.   One of the more stressful issues that divorcing parties encounter is the issue of conservatorship.

More specifically, who will have the primary custody of the child. It was commonly believed by most parties that the mother was the one that was presumed to be the parent that was more capable of having custodial custody of a child.

Of course, the law has changed and gender discrimination is no longer the rule that courts have to follow in deciding what the best interest of the child regarding primary conservatorship.

Does the Court order a custody evaluation?

There are several methods of getting the Court to order a child custody evaluation. The court, after notice and hearing or on the agreement of the parties, may order the preparation of a child custody evaluation regarding the circumstances and condition of: a child who is the subject of a suit; a party to a suit; and if appropriate, the residence of any person requesting conservatorship of, possession of, or access to a child who is the subject of the suit; and the Court will also order an evaluation of any issue or question relating to the suit at the request of the court before or during the evaluation process.

However, the court may not appoint a child custody evaluator in a suit involving a nonparent seeking conservatorship of a child unless, after notice and hearing or on the agreement of the parties, the court makes a specific finding that good cause has been shown for the appointment of a child custody evaluator.

Except for an order appointing a child custody evaluator who is qualified under Section

107.104(b)(3), an order for a child custody evaluation must include the name of each person who will conduct the evaluation;  the purpose of the evaluation;  a list of the basic elements of an evaluation required by Section 107.109(c);  a list of any additional elements of an evaluation required by the court to be completed, including any additional elements specified in Section 107.109(d); and the specific issues or questions to be addressed in the evaluation.

Except as provided by Section 107.106 of the Texas Family Code, each individual who conducts a child custody evaluation must be qualified under the Texas Family Code.

Can just anyone conduct a child custody evaluation?

No. The evaluator must pass several requirements imposed by the Texas Family Code before they are allowed to complete a child custody evaluation. They must have the following qualifications:

(1) “Full-time experience” means a period during which an individual works at least 30 hours per week.

(2) “Human services field of study” means a field of study designed to prepare an individual in the disciplined application of counseling, family therapy, psychology, or social work values, principles, and methods.

(b) To be qualified to conduct a child custody evaluation, an individual must:

(1) have at least a master’s degree from an accredited college or university in a human services field of study and a license to practice in this state as a social worker, professional counselor, marriage and family therapist, or psychologist, or have a license to practice medicine in this state and board certification in psychiatry and:

(A) after completing any degree required by this subdivision, have two years of fulltime experience or equivalent part-time experience under professional supervision during which the individual performed functions involving the evaluation of physical, intellectual, social, and psychological functioning and needs and developed an understanding of the social and physical environment, both present and prospective, to meet those needs; and

(B) after obtaining a license required by this subdivision, have performed at least 10 court-ordered child custody evaluations under the supervision of an individual qualified under this section;

(2) meet the requirements of Subdivision (1)(A) and be practicing under the direct supervision of an individual qualified under this section in order to complete at least 10 court-ordered child custody evaluations under supervision; or

(3) be employed by or under contract with a domestic relations office, provided that the individual conducts child custody evaluations relating only to families ordered by a court to participate in child custody evaluations conducted by the domestic relations office.

(c) Notwithstanding Subsections (b)(1) and (2), an individual with a doctoral degree and who holds a license in a human services field of study is qualified to conduct a child custody evaluation if the individual has completed a number of hours of professional development coursework and practice experience directly related to the performance of child custody evaluations as described by this chapter, satisfactory to the licensing agency that issues the individual’s license.

(d) The licensing agency that issues a license to an individual described by Subsection (c) may determine by the rule that internships, practicums, and other professional preparatory activities completed by the individual during the course of achieving the person’s doctoral degree satisfy the requirements of Subsection (c) in whole or in part.

(e) In addition to the qualifications prescribed by this section, an individual must complete at least eight hours of family violence dynamics training provided by a family violence service provider to be qualified to conduct a child custody evaluation under this subchapter.

What if the custody evaluator is chosen by the opposing side?

Before accepting an appointment as a child custody evaluator in a suit, a person must disclose to the court, each attorney for a party to the suit, any attorney for a child who is the subject of the suit, and any party to the suit who does not have an attorney:

(1) any conflict of interest that the person believes the person has with any party to the suit

or a child who is the subject of the suit;

(2) any previous knowledge that the person has of a party to the suit or a child who is the subject of the suit, other than knowledge obtained in a court-ordered evaluation;

(3) any pecuniary relationship that the person believes the person has with an attorney in the suit;

(4) any relationship of confidence or trust that the person believes the person has with an attorney in the suit; and

(5) any other information relating to the person’s relationship with an attorney in the suit that a reasonable, prudent person would believe would affect the ability of the person to act impartially in conducting a child custody evaluation.

(b) The court may not appoint a person as a child custody evaluator in a suit if the person makes any of the disclosures in Subsection (a) unless:

(1) the court finds that:

(A) the person has no conflict of interest with a party to the suit or a child who is the subject of the suit;

(B) the person’s previous knowledge of a party to the suit or a child who is the subject of the suit is not relevant;

(C) the person does not have a pecuniary relationship with an attorney in the suit; and

(D) the person does not have a relationship of trust or confidence with an attorney in the suit; or

(2) the parties and any attorney for a child who is the subject of the suit agree in writing to the person’s appointment as the child custody evaluator.

(c) After being appointed as a child custody evaluator in a suit, a person shall immediately disclose to the court, each attorney for a party to the suit, any attorney for a child who is the subject of the suit, and any party to the suit who does not have an attorney any discovery of:

(1) a conflict of interest that the person believes the person has with a party to the suit or a child who is the subject of the suit; and

(2) previous knowledge that the person has of a party to the suit or a child who is the subject of the suit, other than knowledge obtained in a court-ordered evaluation.

(d) A person shall resign from the person’s appointment as a child custody evaluator in a suit if the person makes any of the disclosures in Subsection (c) unless:

(1) the court finds that:

(A) the person has no conflict of interest with a party to the suit or a child who is the subject of the suit; and

(B) the person’s previous knowledge of a party to the suit or a child who is the subject of the suit is not relevant; or

(2) the parties and any attorney for a child who is the subject of the suit agree in writing to the person’s continued appointment as the child custody evaluator.

(e) A child custody evaluator who has previously conducted a child custody evaluation for a suit may conduct all subsequent evaluations in the suit unless the court finds that the evaluator is biased.

(f) An individual may not be appointed as a child custody evaluator in a suit if the individual has worked in a professional capacity with a party to the suit, a child who is the subject of the suit, or a member of the party’s or child’s family who is involved in the suit. This subsection does not apply to an individual who has worked in a professional capacity with a party, a child, or a member of the party’s or child’s family only as a teacher of parenting skills in a group setting, with no individualized interaction with any party, the child, any party’s family, or the child’s family, or as a child custody evaluator who performed a previous evaluation. A child custody evaluator who has worked as a teacher of parenting skills in a group setting that included a party, a child, or another person who will be the subject of an evaluation or has worked as a child custody evaluator for a previous evaluation must notify the court and the attorney of each represented party or, if a party is not represented, the evaluator must notify the party. For purposes of this subsection, “family” has the meaning assigned by Section 71.003.

If your divorce case involves a custody issue, it is always best to get the Court to order the child custody evaluation early on in your litigation.

The parties will have to pay the cost of the evaluator before the evaluation is started.  However, in today’s litigious society, many evaluations are taking place in every jurisdiction. And, the time required to complete a social study evaluation can range from 3 to 9 months.

So, you want to make sure your case has initiated the child custody evaluation early in your litigation so that a recommendation is not too long as to require an additional ruling from the Court in the interim.