Note: this is going to be a more lawyer-centric post.
In Utah, we use custody evaluators as experts in divorce and child custody cases.
Custody evaluators come on to cases in one of two primary ways.
First, attorneys agree on which custody evaluator to use. This is probably the most common way things happen. For example, during mediation, attorneys will talk about which evaluator to use and then agree on that person.
If that happens, the attorneys will file an agreement with the court and the evaluator will begin the custody evaluation process. Easy.
Second, attorneys don’t agree about who to use. What happens in this situation?
This is almost always how it goes down: the attorneys file with the Court who they want as the evaluator and the Court decides.
One Way to Get the Evaluator You Want
What I want to talk about for a moment is how to get the evaluator you want when you have to file motions and go to Court.
It’s all about the power of lists.
What I mean is every attorney who sees your list of custody evaluators assumes you want the first evaluator on your list.
Since this is the case, unless you magically nominate the opposing attorney’s first choice, he or she will almost undoubtedly reject the first evaluator on your list.
So, and I think you know where this is going, you should bury your preferred evaluator. Anywhere after #1 is fine.
The first person on your list should be someone you’re comfortable with, but not your #1. The reason for this is simple: if opposing counsel says yes to your first, you have to be comfortable using that person. There’s nothing weirder than having to say no to the person you nominated.
So far, we’ve talked about using the power of lists when you negotiate with opposing counsel before going to court about which evaluator to use. But this principle isn’t limited to negotiations; it can help when you go argue in court as well.
Think about it, when you go to court, the commissioner or judge will assume the #1 on your list is your preferred. Use that fact to your advantage by giving in on your “first choice” and settling for your “second.”
I would play this up a bit. Make it really seem like your #1 is the best thing on the world, and it will really put you and your client out not to have this evaluator, but you will accept your #2 if you’re forced to. Essentially, go kicking and screaming to the one you really want.
If this tactic seems sneaky, it kind of is. And there’s nothing wrong with that. If you think the other guy’s not using tactics to get a leg up, I had a bridge to nowhere I’d like to sell you. Getting your client and the kids the best custody evaluator is what’s important here. Focus on that.