custody evalEffective for cases filed on or after March 1, 2016, new standards will apply to child custody evaluations to be conducted in Texas cases involving children. The new law replaces the old term “social study” with the new term “child custody evaluation”. Now, 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 the specific issues or questions to be addressed in the evaluation. Further, the new law raises the minimum qualifications for a person conducting a child custody evaluation, requiring at least a master’s degree (no longer just a bachelor’s degree) or a medical license with board certification in psychiatry. Only a properly appointed child custody evaluator may make recommendations about custody. No longer may a child’s treating therapist or social worker or other mental health person involved with a child make recommendations about what parent should have custody.

The new statute defines the following terms:

“Child custody evaluation” means an evaluative process ordered by a court in a contested case through which information, opinions, recommendations, and answers to specific questions asked by the court may be: made regarding conservatorship of a child, including the terms and conditions of conservatorship; possession of or access to a child, including the terms and conditions of possession or access; and any other issue affecting the best interest of a child; and may be made to the court, the parties to the suit, the parties ’ attorneys, and any other person appointed under this chapter by the court in the suit.

Neither the term nor the statute applies to a case involving the Department of Family and Protective Services.

“Child custody evaluator” means an individual who conducts a child custody evaluation under this subchapter. The term includes a private child custody evaluator.

The court is required to hold a hearing before ordering a custody evaluation, unless the parties agree. Such evaluation may be ordered regarding the (1) condition of the circumstances of a child the subject of a suit, a party to a suit, and the residence of any person requesting conservatorship of, possession/access to a child the subject of the suit; and, (2) any issue or question relating to the suit at the request of the court before or during the evaluation process. Before ordering a custody evaluation, the court must make a specific finding that good cause has been shown for the evaluation.

Gone are the days where a child custody evaluator may have undisclosed communication with one party or attorney. Now, the evaluator must disclose any communication regarding a substantive issue between the evaluator and an attorney representing a party (but not an amicus or ad litem representing a child).

The evaluator is also required to verify factual statements made during an evaluation through independent sources. Gone are the days where an evaluator may take a party’s statements a face value and rely upon them.

In the report, the custody evaluator is required to state the basis for the evaluator’s conclusions and recommendations. If the evaluator only saw one side of the case, he or she can make no custody recommendations, but may state whether any information indicates a concern for the safety of the child, the party’s parenting skills, the party’s relationship with the child, or the mental health of the party.

The basic elements of a custody evaluation, necessary for a recommendation, include:

  1. Personal interview of each party to the suit;
  2. Interviews of each child the subject of the suit, regardless of the age of child, during a period of possession of each party to the suit but outside of the presence of the party;
  3. Observation of each child the subject of the suit in the presence of each party to the suit, including during supervised visitation, unless good cause is stated;
  4. Observation and interview of any child not the subject of the suit who lives full time in a residence that is subject of the evaluation;
  5. Information from relevant collateral sources, including review of school records; physical and mental health records of each party and each child the subject of the suit; records of Department of Family and Protective Services; criminal history information of each child, each party, and each person living with a party to the suit; any other collateral source with relevant information
  6. Evaluation of the home environment of each party seeking conservatorship or possession of a child the subject of the suit, unless the condition of the home is not in dispute;
  7. Criminal history and contact with the Department of Family and Protective Services or any law enforcement agency regarding abuse or neglect; and
  8. Assessment of the relationship between each child subject of the suit and each party seeking possession of the child.

Additional elements that may be included in the evaluation include:

  1. Balanced interviews and observations of each child the subject of the suit in the possession of each party;
  2. Interview of each individual, including a child, residing full or part-time in the residence subject to the evaluation;
  3. Home environment of each party subject of the suit, regardless of whether the home is in dispute;
  4. Observation of the child with each adult in the home subject of the evaluation;
  5. Interview and observation of each child full or part-time living in the home subject of the evaluation;
  6. Psychometric testing;
  7. Other tasks requested by the court to be performed, including a joint interview of the parties to the suit, and review of any other relevant information.

The child custody evaluator is required to keep detailed records of the actions taken and performed, including oral interviews conducted, during the evaluation.

The child custody report in a private appointment must be completed and provided to the attorneys of record at least 30 days prior to trial in the suit.; whereas, the evaluation report conducted by a domestic relations office must be provided no later than 5 days before trial.

No witness may testify to an expert opinion or recommendation regarding conservatorship or possession of a child unless he or she has conducted a child custody evaluation.

Although the act takes effect on September 1, 2015, the act only applies to suits filed on or after March 16, 2015.

Many divorce lawyers in Dallas County and across the State of Texas are wary of the hidden effects of this new law. The most certain unfortunate side effect of the more stringent requirements for child custody evaluations will be to increase the costs of litigation regarding a child custody matter. No longer will the child’s treating therapist or physician, people with extensive relationships with the child, be able to express opinions about the schedule that is best for the child, or make other observations that touch on conservatorship and possession. Those recommendations will now be made by a third-party neutral person, stranger to the child, who has had limited contact and access to the child. Such person will have to extensively research each factual statement by each party, conduct countless hours of interviews, home visits, records reviews, and other investigative activities to gain a glimpse into the life of a child that others have been working to establish for years. The logical consequence of these requirements will be that parties to a custody lawsuit will be forced to spend a lot of money to have custody evaluations completed in order to have a person make recommendations to a court about the outcome. In many situations, it may be easier and more cost effective to have a trial to the judge and present all such evidence one time to the judge and let the judge be the decision-maker he or she was elected to be.

See the full text of the enrolled version of the law here.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.