Custody investigator question

[winter]

This seems like the right place to post this.

  Socrateaser,  I am in need of your advice on a Custody Ivestigator.  
In May SO and I were interviewed by the CI as per SO's request for one.  The set up seemed a little screwy to me:  Three interviews, one alone, one with children and then a follow up.  She never entered our home, never interviewed any of the people on the list she asked for.  She brought up each parents concerns about the other one, ( which I found very inappropriate, especially since she had been told about how volatile that situation could get on BM's part.)  and with that filed her report.

 My issue not only lies in the vagueness of this process but also the way that the report was so incredibly biased.  She reported how wonderful SO was with the children, how much the children liked me.  She reported how SO was very interactive and comfortable with the children.

  Then came the report on BM.  She reported that BM tried to discuss issues in front of children.  She reported that during the interview with the children how she ignored them and stared out the window and then let the 3 year old wet himself. She reported how it was just a slamfest on me and SO and she reported the BM needed counseling and parenting classes.

 Her recommendations were as follows:  Dad gets first three Saturdays of every month for 4 hours and every other holiday, until he takes parenting classes.  Mom gets sole custody of the children because of her ever deteriorating emotional state. They can share legal custody unless there are anymore child abuse allegations in which case Dad never gets to see them again.( We have had 57% custody for over a year now, in spite of her efforts to make SO out to be an abusive father 4 times)  

 This CI mixed up the boys names and information that we gave her about each.  She completely took BM's word for the fact that I was an exotic dancer, danced at SO bacholer party prior to marrying her, and that I didn't have custody of my children. None of which is true.  

 This person has recently terminated her employment and is not accessable as a witness.  What do we do about this report?  The hearing is in less then a month.  

P.S. We do have a attorney

[socrateaser]

> This person has recently terminated her employment and is not
>accessable as a witness.  What do we do about this report?
>The hearing is in less then a month.  

If the witness is unavailable, then the report is objectionable as hearsay, not covered by any exception, as to any part stating an expert opinion. The only admissible parts would be statistical information, and bare statements of fact, each of which would need to be separately admissible under some other hearsay exception, exemption or exclusion.

However, just because someone is no longer employed by the entity that authored a report, doesn't mean that the person is necessarily unavailable as a witness. Unavailable means: dead, too ill to testify, legally incompetent, hidden or otherwise beyond the reach of the court's subpoena power, under a confidentiality privilege.

If none of the above is true, then you can subpoena the witness to appear and crossexamine him/her about the contents of the report, so as to try to discredit it. You can even hire your own expert to interview you and the kids and that person can read the other report and try to rebut its contents.

You can also submit to a polygraph exam, and try to offer the results into evidence. If the other party refuses to permit it, that may suggest to the court that they are not being entirely honest. Obviously, if you plan to do this, you had better not be misrepresenting the facts, because the examiner will recognize the false statements and the report will be unfavorable.

And, you can hire a PI to follow the other parent and try to record some particularly damaging behavior with the child while in a public place.

All of these things are very expensive, so most people will not go to the length to make their case. But, it's legal and possible, you just have to decide how or whether to spend your money.

[winter]

 You are wonderful!  You have told me more in the last two days then anyone in the last six monthes!

 Back to business:  We were sent a letter by the state stateing that the custody investigator would be terminating her employment and would only be available until July 11.  This led us  and our attorney to believe she was out!  

  As far as hiring our own expert, it is not available in our state.  We have the daycare, CS, and CPS already suponeaed.  Even a private investigator is considered hearsay in my state (Alaska, we looked into it)

  I am looking for any kind of ground,  We are dealing with a physically disabled child and a potentially emotionally disturbed child.  Any advice you can give me will be greatly appreciated!  Winter

[socrateaser]

> You are wonderful!  You have told me more in the last two
>days then anyone in the last six monthes!
>
> Back to business:  We were sent a letter by the state
>stateing that the custody investigator would be terminating
>her employment and would only be available until July 11.
>This led us  and our attorney to believe she was out!  

Unless there is some evidence rule in your state that makes the evaluator unavailable for testimony if not employed by the state, then the evaluator is still available and you can subpeona his/her appearance at trial, as long as the subpoena is served on the state before the employee is terminated. Prior to that, the state would be liable for the failure to notice the employee that he/she must appear, and if the employee is noticed and doesn't appear than he/she would be in contempt of court.

>
>  As far as hiring our own expert, it is not available in our
>state.  We have the daycare, CS, and CPS already suponeaed.
>Even a private investigator is considered hearsay in my state
>(Alaska, we looked into it)

Any qualified person with skills substantially the same as an evaluator can be privately retained to evaluate and report on the child and your relationship. If the court will not permit the other parent to be subject to your private evaluation, that would be a violation of constitutional due process in my opinion, under the Mathews test which states that the court must balance the individual's interests, the risk of an erroneous deprivation of rights, and the state's interest in administrative and fiscal efficiency. Under this test, the state has a compelling interest in the child's best interests, and if you believe that the evaluator's report is suspect, then the denial of the use of another evaluator would not only interfere with your fundamental right to custody, but also with the state's compelling interest in the child's welfare.

I'm just writing for my own health, because in order to force this issue, you would need to spend a huge amount of money trying to overcome the existing state law. Eventually, you would probably win, but by then you'd be so broke you wouldn't care.

>  I am looking for any kind of ground,  We are dealing with a
>physically disabled child and a potentially emotionally
>disturbed child.  Any advice you can give me will be greatly
>appreciated!  Winter

My previous info stands. I don't have anything better to offer.