§ Rule 90.6. Appointment of Child Custody Investigator

Rule 90.6. Appointment of Child Custody Investigator

(a) Appointment. In an action under AS 25.20, AS 25.24, or AS 18.66, the court may appoint an expert under Evidence Rule 706 to investigate custody, access, and visitation issues and provide an independent opinion concerning the child's best interests. If the parties cannot afford a private custody investigator, the court may appoint the court custody investigator to conduct the investigation and provide an expert opinion.

(b) Qualifications.

(1) A custody investigator should possess knowledge, skill, experience, training, or education that allows the custody investigator to conduct a thorough and impartial investigation and offer an informed opinion to the court regarding custody and visitation issues. Specifically, the custody investigator should have an understanding of the following as appropriate to the case:

(A) child development from infancy through adolescence;

(B) impact of divorce and parental separation on a child;

(D) domestic violence and substance abuse and their impact on children;

(E) Alaska statutes and rules relating to custody determinations;

(F) the ability to communicate effectively with children and adults;

(G) the ability to communicate recommendations orally and in writing; and

(H) other qualifications appropriate to the particular case.

(2) Upon request of a party, a custody investigator or prospective custody investigator shall provide to the parties a written summary of relevant education and experience.

(c) Disclosure of Conflicts. The custody investigator shall disclose any relationships or associations between the investigator and any party which might reasonably cause the investigator's impartiality to be questioned. This disclosure must be made no later than 10 days after appointment.

(d) Report.

(1) Deadline for Filing and Contents. The court shall specify the date by which the custody investigator must file and serve a written report. The report must describe the investigation, including who was interviewed and what records were reviewed, summarize the information obtained, and explain the custody investigator's conclusions and recommendations utilizing the applicable statutory factors.

(2) Admission of Report into Evidence. Unless otherwise ordered, the custody investigator's report is deemed to be admitted into evidence upon filing and may be reviewed by the court before the hearing or trial. A party may require the custody investigator to appear at a hearing or trial to testify about the report. To preserve this right, the party must include the custody investigator on the party's final witness list. The party must also take appropriate steps to ensure the custody investigator's presence at the hearing or trial, which may include requesting the issuance of a subpoena.

(3) Confidentiality. The custody investigator's report is confidential unless otherwise ordered by the court. However, it may be disclosed to a party's expert for the purpose of consultation for trial.

(4) Meeting with Parties. The custody investigator may meet with the parties jointly or separately at any time to discuss the investigation and the investigator's conclusions in order to facilitate a voluntary resolution of the issues.

(e) Investigation. Unless the court has limited the scope of the investigation, a custody investigation should usually include:

(1) individual interviews with each parent;

(2) individual interviews with new spouses, live-in partners, or significant others of each parent;

(3) individual interviews with or observations of each child in the family;

(4) observation of parent-child interactions;

(5) review of the court file and other documents provided by the parties;

(6) criminal and child protection record checks on the parents, new spouses, and other people living in the household;

(7) review of relevant records pertaining to the child and household members, subject to applicable privileges;

(8) review of personal references provided by friends or family members of the parents;

(9) in-person or telephone interviews with other individuals who have information about the family, as the investigator believes is necessary.

(f) Release of Records. Unless otherwise specified in the appointment order, the custody investigator may request a party to execute a release authorizing the investigator to inspect and copy confidential records pertaining to the child or to the party. Within ten days after receiving a request for a release, a party must either execute the release or file a motion for a protective order under Civil Rule 26(c). A motion for a protective order must be accompanied by a certification that the party has conferred or attempted to confer with the custody investigator in an effort to resolve the dispute without court action. If the party fails to respond, the custody investigator may notify the court and the court shall enter an order directing that the records be released.

(g) Contact with Parties and the Court.

(1) Contact with Parties. Unless otherwise ordered, a custody investigator may communicate with a party who is represented by an attorney without prior notice to the attorney.

(2) Contact with Court. Unless all parties consent, a custody investigator shall not engage in ex parte communications with the court concerning a pending case except for scheduling and other administrative purposes when circumstances require.

(h) Discovery. A party may depose a custody investigator appointed under this rule after completion of a report. Documents and records in the possession of the custody investigator are discoverable under Civil Rule 30(b)(5) and Civil Rule 34 as though the custody investigator were a party to the action subject to any limitations set by the court as to the use and dissemination of confidential records.

(i) Compensation. Fees and costs for a private custody investigator will be divided equally between the parties unless the court finds good cause to change this allocation.

Commentary. Evidence Rule 706 authorizes the court to appoint independent experts in civil or criminal litigation. An expert appointed under Rule 706 must advise the parties of the expert's findings, may be deposed by either party, and may be called to testify by either party or the court.

When a private custody investigator is being appointed, the court may ask the parties to suggest individuals for appointment.

A full custody investigation should usually include all of the elements listed in paragraph (e). Some of these elements may be dispensed with if the court has limited the scope of the investigation, either by narrowing the issues that the custody investigator should address or by limiting the tasks that the investigator should perform. If the court has appointed a private custody investigator, for example, the court may agree to dispense with some of the elements of a full investigation in order to reduce the cost to the parties. In addition, for budget reasons, the presiding judge of the judicial district may enter an administrative order limiting the tasks that court custody investigators will routinely perform. Even when the court has requested a full investigation, the custody investigator has discretion to dispense with interviews or record checks that are clearly unwarranted in a particular case.

Paragraph (e) also indicates that the custody investigator should review relevant records of the child and other household members. Relevant records may include school records, medical records, alcohol or drug abuse treatment records, and records regarding incidents of domestic violence.