In a divorce action, both parties may petition the Court for primary or custodial custody of a child. The Court will usually appoint one of the parents as the custodial parent. Usually, that means that the parent shall have the exclusive right to determine the primary residence of the child and establish where the child will attend school. Together with that right is the exclusive right to receive support for the child. As such, that is why the action to get the exclusive right to establish the primary residence of a child can get very complicated and expensive because of the litigation involved.
Either party may petition the Court to order the preparation of a child custody evaluation. The evaluation will recommend to the Court who the parent should be to be appointed as the custodial parent. It is a rebuttable recommendation and thus can be taken to trial on the issue of primary custody. However, most judges that I have practiced in front of will usually follow the recommendation of the child custody evaluator.
How can I get the Court to order the child custody evaluation?
The court, after notice and hearing or on 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.
The Court may 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.
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 agreement of the parties, the court makes a specific finding that good cause has been shown for the appointment of a child custody evaluator.
An order for a child custody evaluation must include the name of each person who will conduct the evaluation, the purpose of the evaluation, and a list of the basic elements of an evaluation.
The order shall also include a list of any additional elements of an evaluation required by the court to be completed including any additional elements specified under the Texas Family Code and the specific issues or questions to be addressed in the evaluation.
In appointing a child custody evaluator in a suit in which a party subject to the child custody evaluation does not speak English as a primary language, the court shall ensure that the child custody evaluator is able to effectively communicate in the primary language of the party or will be assisted by a licensed or certified interpreter.
A licensed or certified interpreter assisting a child custody evaluator under the Texas Family Code may accompany the evaluator in person or assist through use of audio or video conferencing technology.
The court may require the parties to pay any costs associated with obtaining assistance for a child custody evaluator from a licensed or certified interpreter.
Must the child custody evaluator have minimum qualifications:
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 a 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;
(2) be practicing under the direct supervision of an individual qualified 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) 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, 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 rule that internships, practicums, and other professional preparatory activities completed by the individual during the course of achieving the person’s doctoral degree.
(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.
The court shall determine whether the qualifications of a child custody evaluator satisfy the requirements.
A child custody evaluator must demonstrate, if requested, appropriate knowledge and competence in child custody evaluation services consistent with professional models, standards, and guidelines.
The parent seeking primary custody must be prepared to have the Court order the child custody evaluation, pay fees for the evaluation, and be prepared to go thru the evaluation which may take 6 to 12 months to finalize. Once the evaluation is completed, the party must schedule a final hearing to have the Court make a ruling on the petition for primary custody based in part in the recommendation of child custody evaluation.