There is no way you both are ever going to agree on child custody.
What you do when the parents just can’t come to an agreement on what parenting plan is best for the children?
For example, Dad is convinced that a 50-50 agreement is what the children really need, while Mom is convinced that the children will only do best in a more traditional structure where the mom has children during the school week and the dad has them every other weekend.
Because parents often have deep-seeded beliefs on what really makes the best structure for their children, they can become ingrained in their positions and be unable to bend.
That’s where the judge can come into play. In such situations, both parties can get in front of the judge and argue their particular cases.
But even that can be insufficient for the judge to make an educated decision. After all, judges are often unable or unwilling to talk to children to get their opinion, and the judge certainly isn’t allowed to go into the parents’ homes to figure out what’s going on.
If the parents need assistance in developing their plan, they can ask the court to order a social investigation to deliver an opinion on a recommended parenting plan.
The social investigation is an effective tool for the court that is underutilized in custody cases.
It is an opportunity to have an expert make a non-binding recommendation concerning one or more of the elements of a parenting plan. These are court-appointed mental health practitioners or other professionals designated under statute to be qualified staff members of the court. (Think of a child placement agency, psychologist, clinical social worker, marriage and family therapist, mental health counselor, etc.)
There are experts in each jurisdiction in Florida — including Hillsboro, Pinellas, and Pasco counties — that do this all day, every day. In other words, we have psychologists and other professional experts who spend all day interviewing families and developing recommendations for the court.
We know there are a lot of factors that the court is charged with looking at in order to develop a parenting plan. The beauty of a social investigation is it can look at all of the factors and develop a parenting plan recommendation, look at some of the factors, or in some cases just look at one or two of the factors.
So for example, the court has the power to appoint a social investigation and include a psychological evaluation of the parents or of the children as part of the process. This can be a shortcut for the court to get parties evaluated without having to go through more formal requests under the law.
Index for Quick Jump
While either party can go to the court and ask for a parenting plan recommendation, the reality is that it’s best when both parties agree that they’re having a difficult time figuring out a parenting plan and need a third party’s help to figure out what is best for the children.
In this case, the parties can agree as to who will pay for the expert conducting the social investigation, which expert they want to use, and whether they want the expert to do a full social investigation with an opinion or if they want the expert to look into some narrow issues and just deliver opinions on those issues.
Sometimes the agreement can be based on a small isolated issue with which a parenting plan recommendation could help. So for example, take this real-world example:
Mom doesn’t want Dad to have any unsupervised time-sharing. The social investigation could reveal that Mom genuinely has a concern that Dad has mental health issues that have been exacerbated by the divorce and could make unsupervised visits unsafe for the children.
Now, Mom could ask the court to compel a psychological evaluation. But another alternative is for Mom, through her attorney, to order both parties have a psychological evaluation using the social investigation statute. In this case, just the isolated issue of the mental fitness of the parties is at stake and can be resolved by the psychologist. Dad comes back with a clean bill of mental health, Mom’s fears have been eased, and a reasonable settlement should be around the corner.
Alternatively, consider the case where Mom simply believes the children must be with her every day during the school year. She feels that this is best for her children. Dad disagrees and thinks the children should be with him every day during the school year. In this case, addressing an isolated issue is not going to help. This would require a full social investigation. After reviewing everything about the parties and their children, a qualified expert can deliver to the court a recommendation of what parenting plan would work best for all parties.
When a social investigation is ordered, the attorneys go into the background for a little bit and the qualified mental health professional goes to the forefront.
There needs to be a court order that clearly defines the duties and role of the social investigator. This order is then delivered to the appointed social investigator. From there, the social investigator will reach out to each of the parents. There will be an introductory meeting with Mom, and then an introductory meeting with Dad.
This order often spells out the length of time to be expected for the examiner to do the investigation. At a minimum expect 60 days, although in many cases it can run 120 days or longer. It all depends on the family and how much work needs to be done.
From there the social investigator will spell out his plan of how he wishes to proceed. While each investigator is different, you can expect the following:
After the first meeting with the investigator, the divorce attorney and the client will sit down and talk about how they can work together to facilitate any documentary evidence and witness lists. They will also discuss other ways to facilitate the process and make sure it goes as well as possible for the client.
Unless a person obtains a certification from the court that they don’t have the ability to pay, the adult parties involved will have to pay for the cost of the social investigation and study.
Most jurisdictions offer people with modest incomes social investigations on a sliding scale, or even pro bono work in some cases. For example, Hillsboro offers a program that if the parties’ combined income is under a certain threshold that a social investigation can be done for a flat fee.
If the parties are able to stipulate and agree to an investigator, they have the ability to examine both the qualifications of the individual and the price levels of the individual to find the right thing for that particular family.
At the end, the investigator will prepare a thorough and accurate report. The report details all the work that the investigator has done, all of the evidence that has been examined by the investigator, and all witnesses that the investigator has interviewed. Then, there is a summary or conclusion whereby the investigator will go through each of the statutes under Florida law and detail the findings that he made for this family. Then, at the end the expert will provide a proposed parenting plan.
In smaller cases these reports are 20 or 30 pages long, but in the most hotly contested cases we’ve seen reports that exceed 250 pages.
My spouse won’t agree on anything, so why would he or she agree on a social investigation?
When a truly contested custody case exists, even spouses that can’t agree on anything else can usually orchestrate an agreement through their lawyers to order a social investigation and pick out an investigator. Expect your attorney to recommend investigators in the community that he trusts to do a great job for you and your family.
But when an agreement can’t be reached on that, the court gives opportunities for individuals to request a parenting recommendation.
First, many courts make high use of case management conferences. For example, Hillsborough County will automatically order a case management conference at its Tampa or Plant City office for almost every case. Case management conferences are an opportunity for the judge to do basically whatever needs to be done to iron out any custody and divorce issues before a hearing. The judge has the ability to order a social investigation. Second and more commonly, the judge can hear a motion brought by one of the parties to order a social investigation.
In these cases, the attorney will file a motion with the judge asking for a social investigation, suggesting a particular investigator, and recommending how the parties should split the fee. That attorney will then set a hearing, usually only 15 to 30 minutes, and bring the issue in front of the judge. At that point, you would be expected as the client to briefly testify to the judge as to why you think a parenting plan recommendation is appropriate. Don’t worry; your attorney will have you prepped and ready to go.