Custody Evaluations in Minnesota
- by Eric C. Nelson, Attorney

Minnesota statutes provide that: “In contested custody proceedings . . . the court may order an investigation and report concerning custodial arrangements for the child.” This is referred to as a “custody evaluation.” [1] Although not mandatory, it is almost always ordered in contested custody cases, with rare exception, although in some counties or situations this task may be essentially assigned to a Guardian ad Litem rather than a custody evaluator (which is not advisable).

The cost of a custody evaluation can range from the hundreds to several thousands of dollars, depending on the county and whether the parties are using a Court Services evaluator or a private evaluator, in if so, who.

Custody evaluations usually take about four months to complete, give or take. A good custody evaluation will generally include the following:

  • at least one both usually two or three interviews with each parent, separately, totaling at least two or three hours for each parent.
  • at least one but usually two or three interviews of the children without the parents being present, totaling at least two or three hours.
  • in person or telephone consultation with the children’s day care provider, teacher, and any other adults having a close relationship with the children.
  • for younger children, a observation of interaction between the children and each parent in each parent’s separate home.
  • criminal background check of each parent
  • obtaining the mental health records of each parent, including alcohol and drug dependency treatment records.
  • ordering a psychological evaluation of the parents, ideally in every case, but at least in every case where credible allegations of mental illness are raised.
  • ordering an alcohol and/or chemical abuse assessment where legitimate issues of alcohol or drug abuse are raised.
  • records of the children’s school performance.
  • all other information relevant to determining the best interests of the children with respect to custody.
Upon completion of the Custody Evaluator’s investigation, the Evaluator completes a report which addresses all of the “best interest” factors set forth in section 518.17, with detailed analyses, followed by the Evaluator’s custody and parenting time recommendations. [2]

Although the Custody Evaluator’s recommendations are not binding, they weigh heavily in the Court’s determination of custody. Apart from some minor tweaking, the Court will almost always follow the Custody Evaluator’s recommendations as to custody and parenting time. For this reason, most cases which have not settled before this point will reach settlement when the Custody Evaluation report is received. For those who wish to contest a custody evaluator’s recommendations, it is advisable to obtain a rebuttal evaluation if feasible, or at least to be prepared to bring plenty of witnesses and exhibits to trial to show the Court what it was that the evaluator failed to consider or to properly analyze.

Tips for dealing with a Custody Evaluator:

1. Do NOT take a combative attitude. The last thing you want is for the evaluator to have the impression that you are unreasonable. Don’t assume that because the evaluator is asking you for your response to a concern raised by your spouse, that the evaluator therefore must be agreeing with your spouse’s position. Usually they’re just asking you to get your side of the story.

2. Do NOT question the evaluator’s competence. (At least not until after the evaluation report is completed). Evaluators are professionals who do not appreciate having their integrity or competence called into question. Evaluators hold a lot of power. You want the evaluator to be your friend, not your enemy. Therefore, your dealings with the evaluator should be respectful.

3. When raising concerns about the other party’s parenting deficiencies, do so in a non-angry way. You don’t ever want to appear angry, even if anger is justified because of how your spouse is treating the children. You don’t want to appear as though you’re motivated by spite or anger — only that you are concerned for your children. So for example, instead of saying “My spouse is a hot-tempered bitch/s.o.b. who terrorizes the children and everyone under the roof of our house,” say instead: “I really feel bad having to discuss negative issues about my spouse, because s/he has some very good qualities too, but my fear is that if I don’t explain some of these things to you, you won’t have any other way of understanding the situation and making recommendations that take into account everything that is impacting the children. So with that preface, I do need to discuss my spouse’s anger issues, and how that has affected the children. . .”

Lastly, it is vitally important for your attorney to strategize with you about the information you need to make sure the evaluator takes into account in his or her investigation and report. This should include a discussion of what witnesses and documentary evidence needs to be provided, as well as what the main points are in your favor. I'm always amazed at how many attorneys seem to take a completely hands-off approach to these evaluations, which are so critical to the success of your case.

  1. Minnesota Statute section 518.167, Subdivision 1.
  2. Minnesota Statute section 518.167, Subdivision 1.