In child custody and visitation cases, courts often appoint a mental health professional to conduct a child custody evaluation or psychological evaluation, pursuant to Evidence Code § 730. The expert will gather information from a variety of sources, including the parties, the child, witnesses, psychological testing and a home visit, and provide a written or, sometimes, oral report and recommendation to the court and parties. The report is not binding on the court, but it is usually powerful evidence bearing on the best interest of the children.
Child custody evaluations are governed by Family Code §§ 3110-3118. Family Code § 3111 provides that an evaluator may be appointed in any contested custody or visitation proceeding where the court determines it is the best interests of the child. California Rules of Court Rule 1257.3 sets forth uniform standards of practice for court-ordered child custody evaluations.
In certain types of cases, an evaluation is virtually mandatory. Family Code § 3118 requires an evaluation in any contested proceeding in which the court has appointed a custody evaluator and the court determines that there is a serious allegation of child sexual abuse. An evaluation is generally required where one parent wishes to relocate with the children. In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, (disapproved on other grounds in In re Marriage of Burgess (1996) 13 Cal.4th 25). Evaluations are also extremely valuable in cases involving allegations of drug and alcohol abuse, psychopathology, spousal abuse, parental alienation, or high levels of parental conflict. In other cases, evaluations are of assistance to the court in determining a parenting arrangement which is in the best interest of the children. Evaluations can also be helpful where more limited issues are presented, such as choice of school or whether a child is developmentally ready to begin overnight visitation.
There are several types of custody evaluations; the best “fit” for a particular case depends on the issues involved. Psychiatric or psychological evaluations are the most complex and most costly. The evaluator is a highly credentialed mental health professional, selected either by stipulation or by the court. These evaluations are best suited for more complex issues, such as parental alienation, psychopathology, or high conflict cases. This type of evaluation generally involves psychological testing (e.g., the MMPI-2, the Rorschach test). The evaluator may also conduct “home visits,” in which he or she interviews the parents and the children in their respective homes. The purpose of the home visit is only partly to observe the home; it gives the evaluator an opportunity to observe the parent-child interaction in a more natural and less guarded setting than a professional office.
A generic child custody evaluation is far less costly and less complex. Generally, the evaluator is less highly credentialed. In Los Angeles County, these evaluations are conducted by the Department of Family Court Services, and generally require about five months to complete. In other counties, such evaluations are conducted by the Probation Department. There is no psychological testing, and almost invariably there is a home visit. Such evaluations are suited to disputes over the parenting plan, some parent relocation cases, and some cases of substance abuse or child or spousal abuse. These evaluations are generally court-ordered, although they are sometimes the result of a stipulation.
In recent years, the courts have increasingly ordered “fast-track” evaluations, pursuant to Court Rule 1257(c)(5), which provides for “partial evaluations.” These evaluations are also conducted by Family Court Services in Los Angeles County (which also oversees confidential custody mediation). In other counties, where mediation is not confidential, the mediation process itself results in a similar product. The evaluation is extremely inexpensive and is almost always court-ordered. In general, the parties and children meet with the evaluator during the morning. The evaluator contacts a limited number of “collateral” witnesses (such as a teacher, pediatrician, or day care provider), provided the witnesses are available telephonically. Then, either that afternoon or a few days later, the evaluator testifies to the court. These evaluations are suitable for narrower issues, such as choice of school, conflict over extra-curricular activities, summer vacation schedule, or readiness of the child for overnight visitation.
A “focused” evaluation is essentially a private “fast-track” evaluation. It is more costly, but is useful for the same type of issues. The report of the focused evaluation is presented in writing.
Whatever the type of evaluation, the family law practitioner plays a vital role in presenting the issues to the evaluator. The attorney’s role starts with the selection of the evaluator. Court Rule 1257.3(d)(1)(A)(ii) permits each county to determine whether the parties may exercise a peremptory challenge to an evaluator; Los Angeles County permits one challenge per party. Selecting an evaluator by stipulation gives the parties more control.
Often, there is a list of private mental health professionals who are known to the judicial officers in a particular court. However, counsel need not limit themselves to such a list. However, it is vital that the evaluator be skilled in forensic mental health and child development issues, rather than primarily therapy. Obviously, the better known evaluators, both private and court-employed, have reputations for placing importance on certain issues, or for thoroughness (or lack thereof). If you don’t know an evaluator’s reputation, ask other family law attorneys.
The stipulation or order for the evaluation should provide that the report of the evaluator will be received into evidence without further foundation, but that it will be subject to cross-examination by either party. Family Code § 3111(c). Absent waiver in a stipulation, a party may not be denied the right to cross-examine the evaluator. McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473. Family Code § 3115 provides that the right to cross-examination the evaluator cannot be waived by any written or oral statement or conduct of a party unless the statement or conduct occurs after the report has been received by the party or counsel.
When the evaluation is initiated, all parties will have to sign information releases giving the evaluator access to school, medical, and mental health records of the parties and children.
Except in “fast-track” cases, the parties will each have to complete an extensive intake questionnaire, which requests information as to family history, the parents’ perceptions and concerns, and the parenting plan desired. Here, the attorney must play an active role in presenting an appropriate parenting plan and in framing and prioritizing the relevant issues and facts for the evaluator.
The parties also may submit other written materials to the evaluator, provided that counsel may not engage in ex parte communications with the evaluator or submit documents to the evaluator without providing a copy to opposing counsel or party. At a minimum, counsel should provide the evaluator with copies of all relevant pleadings, and a letter framing the client’s concerns and briefly summarizing the relevant facts.
Court rule 1257.3(e)(2) sets forth a concise list of the broad issues which will be assessed by the evaluator. Since each case turns on its specific facts, it is up to counsel to assist the client in presenting those facts in a cogent manner. The client should prepare a notebook containing declarations or statements of collateral witnesses, school and/or medical records, photographs where relevant, calendars, and relevant correspondence with the other parent.
On occasion, it may be useful to retain a mental health professional to evaluate the client or to assist the client in preparing for an evaluation. For example, if it is alleged that the client suffers from psychopathology, a private evaluation may address that issue and provide input to the court-appointed evaluator.
Counsel should also assist the client in preparing for the clinical interview and home visit. The client should know what to expect, and should understand what issues to emphasize if presented with the opportunity to do so.
Family Code § 3111(a) provides that the written report must be served on the parties or their attorneys at least 10 days before the custody hearing. This 10-day window gives counsel an opportunity to prepare to cross-examine the evaluator and to consider retaining an expert to testify in critique of the report. Note that a fast-track evaluator generally testifies orally at the hearing, rather than submitting a written report.
Counsel should exercise discretion in presenting the report to the client, since reports often contain psychological terms of art and often present both parties in stark and unflattering lights. Many orders appointing the evaluator also prohibit counsel from distributing all or part of the report, and/or providing a copy to the client. Such an order may violate a party’s due process right to confront witnesses.
It is important to keep in mind that the report is not necessarily dispositive of a case. in In re Marriage of deRoque (1999) 74 Cal.App.4th 1090, the appellate court affirmed a trial court that ordered a modification of custody and visitation different from that recommended by the evaluator. See also In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338.
Although the report itself will be received into evidence, it may contain hearsay which is not necessarily admissible. In In re Marriage of Russo (1971) 21 Cal.App.3d 72, the court of appeal held that, upon proper objection, the court must exclude hearsay statements contained in the report. If a hearsay objection is not made, it is waived.
If a party wishes to cross-examine the evaluator, the evaluator and his or her file must be subpoenaed. There may also be an opportunity to take a deposition of the evaluator, prior to the hearing or trial.
Cross-examination of the evaluator and/or testimony of an expert witness should of course focus on defects in the report. Such defects may be that the conclusion of the report does not follow from the facts set forth therein; that the report contains material factual errors; that the evaluator failed to contact highly relevant collaterals after being made aware that the individual had pertinent information; that the evaluator relied on false or biased information; or that psychological research does not support the evaluator’s conclusions.
While a child custody evaluation is a powerful tool in an effort to arrive at an appropriate custody and visitation order, counsel must not abdicate their role to the evaluator. It is up to the family law practitioner to assist the evaluator and the court in interpreting the data so that the result is an order in the best interest of the children.
