Getting the Custody Arrangement You Want...

Getting the exact custody arrangement you want can be as tricky as walking a tightrope over a pit of alligators. You really don’t want to mess it up. The consequences are severe and long-lasting.

As we having been discussing in the Sandia Family Law bLAWg over the past few weeks, your best prospects of obtaining the settlement you want in your own family law case may be through undertaking thought-provoking (and often gut-wrenching) mediation. However, this simply isn’t always possible when one party is insistent on a custody arrangement that you might find otherwise untenable. Such impasses often occur, for instance, when one party insists on supervised visitation for the other parent when no proven need for this exists, or in cases when one party insists on extremely one-sided limited visitation, often as little as one to two days per month.

When parties arrive at such impasses, the only practical option is some form of a custody evaluation. This will take place by way either of a Rule 11-706 expert, a guardian ad litem, or a court clinic referral.

If finances allow for it, your best chance of obtaining the custody arrangement you want for yourself and your children is probably through a Rule 11-706 custody evaluation. An 11-706 expert, in this context, is always a psychologist whose sole purpose is to deliver a recommendation to the court regarding the custody of the children involved in the case following a process of testing, interviewing and observing the respective parties involved.

The cost for this can be prohibitive for most New Mexicans. The whole evaluation will set you back between $4,000 and $7,000 depending upon how many parties are being evaluated. Naturally, the evaluation of step-parents, significant others or siblings significantly increases the cost.

The appointed 11-706 expert will assess the parties through a variety of methods, including Rorschach tests, intelligence tests, achievement assessments and other means. The purpose of this portion of the process is to ascertain the existence of any major psychological issues that may negatively impact the parent-child relationship. Parties tend to get over-excited with respect to this portion of the process, believing that their ex-partner’s perceived neuroses, psychoses or behavioral defects are certain to be discovered (“Yes! Now everyone will see what I have been putting up with for all these years!”). In actuality, I have never seen an 11-706 evaluation happen that way. All that I have observed from this process is an identification of the parties’ weaknesses (and everyone has them) which can then be turned against them when the case goes to trial. Suddenly issues such as narcissism, slight depression or obsessive disorders are made as arguments for the loss of custody. In my experience with these arguments, judges tend to not see it that way, which then makes for some very messy, unnecessary trials.

In addition to the psychological testing, the evaluation process includes review of documents and numerous interviews and observations, finally culminating in the recommendation. What you should generally expect from all this is that the party with less timesharing at the initiation of the process will obtain some greater degree of timesharing in the end. While the recommendations may be objected to, the family law judge will over always adopt said recommendations in the end.

Overall, an 11-706 evaluation is helpful if you can afford it. It is a classic case of the axiom that you get what you pay for. If you want more timesharing with your children and your ex-partner is refusing your request for an increase, the 11-706 custody evaluation is the best chance you have. Most evaluators that I have utilized support fairly equal time for both parents.

Another option of obtaining additional time with your children is through the services of a guardian ad litem, or GAL. A GAL is an attorney representing the interests of your children. With the exception of the psychological testing, the GAL process is very similar to the custody evaluation.

A GAL is going to undertake similar analyses as the psychologist as well as a similar investigation. I have found, however, that a GAL will actually undertake a more thorough investigation. A typical GAL will make at least two home visits and will often spend time visiting will ancillary family members, teachers, day care providers and other significant persons whom the 11-706 psychologist does not always investigate.

Can the GAL find the same potentially dangerous psychoses (assuming they exist) as the psychologist? My findings are that only Level-I diagnoses, as defined by the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV), are going to limit timesharing in any significant manner, and a GAL is going to either observe such behaviors firsthand or discover them in the course of the investigation through the analysis of medical records or conversations with various family members.

Would I still favor the 11-706 evaluation over the guardian ad litem recommendation? I have to say yes. Because of the recent criticisms of the GAL process, the GAL is still going to be reluctant to recommend anything more than minor increases in visitation time; perhaps no more than an increase of a day or two to either parent’s time. If you want fairly significant increases to your timesharing, then request (and be prepared to pay for) the 11-706 evaluation.

Furthermore, because of the long history of the use of 11-706 experts, the judges are going to favor – virtually rubber-stamp, even – their recommendations while a GAL’s recommendations will be open to a little more modification from the court. Admittedly, I am biased toward the legal profession. I will have to ask one of the family law judges next time I am in court and report back in another bLAWg the preference of the family law judges in these cases.

The one area where GAL’s are used to the exclusion of an 11-706 evaluator is in kinship guardianship cases. These cases are usually have very little money involved and the GAL process tends to be somewhat cheaper than the 11-706 process and free services are sometimes available.

Local parties involved in custody matters have one other option, the Bernalillo County Court Clinic. The Court Clinic is available only in the Second Judicial District Court, although various alternatives are available in other counties including SandovalCounty. The Court Clinic, however, is severely understaffed at this time and obtaining your requested evaluation is at least a year-long process. The Court Clinic provides a sliding scale fee available to each party. Unfortunately, I rarely see parties happy with the court clinic process. Too often recently, I see children who have been coached to fully support one parent to the disadvantage of the other parent, and the Court Clinician has neither the time nor resources to get past it, therefore potentially recommending too little time for the parent in the right. Not every case in the Clinic is mismanaged as such, but whether the parties participate in mediation or advisory consultations, I tend to see more dissatisfaction in this arena than in any other area of the family law process. As I stated with respect to hiring an 11-706 expert, you get what you pay for.

Before embarking in the Court Clinic process, I would advise you to hire the 11-706 expert or guardian ad litem, or even to take your chances before your assigned judge.

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