Rule 39: Custody Evaluation

“Custody evaluation” means an expert study and analysis, by an individual qualified to be a custody evaluator, of the needs and development of a child who is the subject of an action or proceeding in which child custody or parenting visitation is an issue, and of the comparative and relative capacities of the parties and other relevant adults to care for and meet the needs and best interest of the child. Custody evaluation shall include full and partial evaluation. Custody and parenting visitation shall include allocation of parental rights and responsibilities, companionship, and visitation.

(A) When Appointed. The court may appoint an evaluator to aid the court in evaluating the best interest of a child in a contested custody or parenting time case.

(B) Eligibility to Serve.

(1) Qualifications

The court has evaluators on staff. The court also maintains a public list of approved private custody evaluators eligible to receive appointments pursuant to Sup.R. 91.

To qualify to serve, a custody evaluator must be either:

(a) An Ohio licensed psychologist or a psychologist licensed in another jurisdiction and authorized by the Ohio Board of Psychology to practice psychology in this state on a temporary basis

(b) An Ohio licensed social worker, professional clinical counselor, or marriage and family therapist or a professional with a equivalent level of licensure issued by another jurisdiction and authorized by the Ohio Counselor, Social Worker, and Marriage and Family Therapist Board to practice in this state on a temporary basis;

(c) A physician licensed in any state and board certified in psychiatry or who has competed a psychiatry residency accredited by the Accreditation Council for Graduate medical Education or a successor to that Council; or

(d) A court employed evaluator who has a minimum of a master’s degree in a mental health field that includes formal education and training in the legal, social, familial, and cultural issues involved in custody decisions.

A custody evaluator must also:

(a) Complete 40 hours of pre-appointment training that complies with Sup.R. 91.08;

(b) Complete six hours of continuing education annually that complies with Sup.R. 91.09.

Individuals serving as custody evaluators on September 1, 2022, have until March 1, 2024, to complete the 40 hours of pre-appointment training required under Sup.R. 91.08(B).

(2) Applications

Individuals seeking to be placed on the Court’s approved list must submit an application on a court-approved form with required supporting documents, to the director of Law Department that document the applicant’s qualifications and completion of the initial training program under Sup.R.91.08(B).

Approved custody evaluators must certify annually to the director of the Law Department. that they are unaware of any circumstances that would disqualify them from serving and must report the training they have attended to comply with Sup.R. 91.08.

Proof of compliance with pre-service training and continuing educational requirements must include information detailing the provider, title, date, location, contents, and credit hours received for any relevant education.

Approved custody evaluators must immediately notify the director of the Law Department, in writing, of any arrest, indictment or conviction, including pleas of guilty, for any criminal offense involving any action that resulted in a child being abused or neglected, or of violation of O.R.C. 2919.25, or any sexually oriented offense involving a child; all civil cases in which the guardian is a named party including civil protection order cases; any pending professional disciplinary actions; and any issues affecting the ability to serve.

(C) Appointments. When needed, the court may, in its discretion, appoint a court employed custody evaluator or a private custody evaluator.

The court will make appointments so as to ensure an equitable distribution of workload among the private custody evaluators on the approved list. Equitable distribution means a system through which appointments are made in an objectively rational, fair, neutral, and nondiscriminatory manner and are widely distributed among substantially all private custody evaluators on the list maintained by the court. The court may consider the complexity of the issues, parties, counsel, and the children involved, as well as the experience, expertise, and demeanor of the available private custody evaluators.

The court will issue an Order of Appointment. Appointments may be for a partial evaluation that is limited in either time or scope. The Order of Appointment will include all of the following information:

1. the name, business address, licensure, and telephone number of the evaluator;
2. the purpose and scope of the appointment;
3. the term of the appointment;
4. a provision that a written report is required and oral testimony may be required;
5. any deadlines pertaining to the submission of reports to the court, including the dates of any pretrial, settlement conference, or trial associated with the furnishing of reports;
6. a provision for payment of fees, expenses, and any hourly rate or fee that will be charged;
7. any provision the court deems necessary to address the safety and protection of all parties, the children of the parties, any other children residing in the home of a party, and the person being appointed;
8. any other provisions the court deems necessary.

The Order of Appointment will also do both of the following:

1. Grant the custody evaluator the right to access information as authorized by the appointment;
2. Require the parties to cooperate with the custody evaluator and provide information promptly when requested to do so.

The court will only consider evaluations completed by a custody evaluator appointed by the court.

A custody evaluator may communicate with the court when necessary to amend the scope or time frame of the order of appointment.

(D) Responsibilities and Authority of Custody Evaluator.

(1) Responsibilities

A custody evaluator shall do all of the following:

(a) Maintain objectivity, provide and gather balanced information from both parties to the case, and control for bias;

(b) Strive to minimize the potential psychological trauma to children during the evaluation and report writing by performing responsibilities in a prompt and timely manner;

(c) Protect the confidentiality of the parties and children with collateral contacts and not release information about the case to any individual except as authorized by the court or statute;

(d) Immediately identity himself or herself as a custody evaluator when contacting individuals in the course of a particular case and inform these individuals about the role of a custody evaluator and that documents and information obtained may become part of court proceedings;

(e) Refrain from an ex parte communications with the court regarding the merits of the case;

(f) Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;

(g) Consider the health, safety, welfare, and best interest of the child in all phases of the process, including interviews with parents, extended family members, counsel for the child, and other interested parties or collateral contacts.

(h) Not pressure children to state a custodial preference;

(i) Inform the parties of the evaluator’s reporting requirements, including, but not limited to, suspected child abuse and neglect and threats to harm one’s self or another person;

(j) Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;

(k) Be conscious of the socioeconomic status, gender, race, ethnicity, sexual orientation, cultural values, religion, family structures, and developmental characteristics of the parties;

(l) Upon discovery, notify the court in writing of any conflicts of interest arising from any relationship or activity with parties or others involved in the case.A custody evaluator shall avoid self-dealing or associations from which the custody evaluator may benefit, directly or indirectly, except from services as a custody evaluator.

(2) Description of Custody Evaluation

A custody evaluation may be a full evaluation or a partial evaluation. A partial evaluation is an examination of the best interest of a child that is limited in either time or scope.

Unless contraindicated in the judgment of the custody evaluator or limited by the Order of Appointment, a custody evaluation shall include but is not limited to all of the following:

(a) Information obtained through interviews, joint or individual, with each party seeking custody or parenting time;

(b) Information obtained through interviews with each child;

(c) Information obtained through interviews with stepparents, significant others, or any other adult residing in the home;

(d) Information obtained through interviews with step or half siblings residing in the home;

(e) Information obtained from child care providers, schools, counselors, hospitals, medical professionals, social service agencies, guardian ad litem, and law enforcement agencies;

(f) Information from home visits or observations of each child with the appropriate adults involved;

(g) History of child abuse, domestic violence, substance abuse, psychiatric illness, and involvement with the legal system;

(h) Investigation into any other relevant information about the child’s needs.

When one party resides in another jurisdiction, a custody evaluator, upon order of the court, may rely upon another qualified neutral professional for assistance in gathering information.

(3) Additional Responsibilities

A custody evaluator shall also do all of the following:

(a) Prepare and file a written report with the court at least 30 days prior to the final hearing. The report shall provide a detailed analysis of the relative strengths and areas in need of improvement of the parties with respect to meeting the needs of the child as well as a comparative analysis of different parenting or companionship plans under consideration.

(b) Include in the written report the statement, “The custody evaluator’s report shall be provided to the court for distribution to unrepresented parties and legal counsel.Unauthorized disclosure or distribution of the report may be subject to court action, including the penalties for contempt which include fines and/or incarceration.”;

(c) Provide a copy of the custody evaluator’s report to the parties and their counsel when the report is filed;

(d) Establish a record keeping system that shall include active control of records and reasonable precautions to prevent the loss or destruction of records in compliance with established record retention standards.

(E) Prohibition against Dissemination. Custody evaluation reports and recommendations shall not be disseminated to anyone nor placed on social media. Reports or the recommendations shall not be shared with minor children who are the subject of the case. Unauthorized disclosure or distribution of the report may be subject to court action, including the penalties for contempt which include fines and/or incarceration.

(F) Complaints, Removal, and Resignation.

(1) Complaints

In the event of comments or complaints regarding the performance of a custody evaluator, the director of the Law Department will do all of the following:

(a) Provide a copy of the comments and complaints to the custody evaluator;

(b) Forward the comments and complaints to the administrative judge;

(c) Issue a timely disposition of the comment or complaint;

(d) Notify the person making the comment or complaint of the disposition;

(e) Maintain a written record in the file of the custody evaluator regarding the nature and disposition of the comment or complaint.

(2) Removal from a case

The court may remove a custody evaluator appointed to perform a custody evaluation upon a showing of good cause.

A custody evaluator may be removed from the approved list for failing to meet failing to meet the qualifications and/or responsibilities established in this rule and Sup. R. 91.01-91.09.

(3) Resignation

A custody evaluator appointed to perform an evaluation may resign prior to completing the evaluation only upon a showing of good cause, notice to the parties, an opportunity to be heard, and with the approval of the court.

(G) Fees and Expenses.

(1) The cost of a private custody evaluator shall be as charged by the evaluator.

The cost of an evaluation by a court employee shall be taxed as costs and assessed as follows:

(a) $800.00 for a full evaluation;

(b) $700.00 for a partial evaluation involving third parties;

(c) $600.00 for a partial evaluation.

A court-employed evaluator may also perform an assessment for alcohol and other drugs at a cost of $175.00.

(2) Ability to Pay

The parties have a right to be heard on the issue of the allocation of fees and expenses before a custody evaluator is appointed.

The court will inquire as to the rate and terms of compensation required by the custody evaluator and shall make a determination of the ability of any party to the case to pay for the likely fees and expenses of the evaluator. In making this determination the court will consider all of the following:

(a) The income, assets, liabilities, and financial circumstances of the parties, as demonstrated by an affidavit or statement of income and expenses, testimony to the court, or evidence of qualifications for any means-tested public assistance;

(b) The complexity of the issues;

(c) The anticipated fees and expenses of the custody evaluator including any fees or expenses related to potential testimony.

(3) Payment

Upon determining that the appointment of a custody evaluation should proceed, the court will issue an order regarding allocation of payment of the evaluator’s fees and expenses.

The court may approve additional fees or expenses, reallocate fees or expenses, or require a party to reimburse another party in part or in whole for fees or expenses paid.

Payment for a private evaluation shall be made directly to the custody evaluator.

(H) Access to Report. The court may receive and read the written report in advance of a hearing or trial for the purpose of conducting a settlement conference in the case.

(I) Testimony and Report at Hearing or Trial.

1. The court will admit the custody evaluator’s report into evidence on the court’s motion.The admitted report will be considered the direct testimony of the custody evaluator.
2. A party challenging the report must subpoena the evaluator to appear for cross-examination not less than fourteen days before the hearing or trial.
3. The court will notify the evaluator as soon as a hearing or trial date is set.The evaluator must be available to testify on cross-examination regarding the report if timely subpoenaed by a party.

(J) Periodic Review. The director of the Law Department shall annually review the Court’s compliance with Sup.R. 91.05(B).

(Effective October 4, 2022.)