Challenging the Custody Evaluator's Recommendations

In child custody cases, California courts decide what custody arrangement the parties must comply with upon divorce. Under California law, courts are required to make custody determinations based on the child’s best interest.

Generally, evaluation of the child’s best interests in proceedings regarding the custody and care of a minor child requires courts to make an inherently personal judgment based on the specific circumstances of each case.

However, courts are generally not in an ideal position to shape the future family relationships for a child, as an assessment of the child’s best interests requires an in-depth look into the family dynamics of the parties and evaluate factors related to the child’s psychological and emotional well-being. People spend years studying child psychology, and judges can hardly be expected to be familiar with the latest discoveries and concepts in that field of study.

To assist with these determinations, courts often appoint experts in the area of child psychology, family therapy, and social work—known as custody evaluators—if doing so would be in the child’s best interest.

The Role of the Custody Evaluator

The court’s authority to appoint a custody evaluator to make recommendations for the court is based on California Evidence Code § 730, which provides that “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on the motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.”

Specifically, California Family Code § 3111 authorizes the appointment of custody evaluators: “In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child.”

A court-appointed custody evaluator is an extension of the court’s judicial authority. As such, custody evaluators inhabit a similar role to the judge as a neutral third-party fact-finder in custody disputes between parents or other parties. The custody evaluator typically issues a confidential report and recommendation to the court regarding what custodial arrangement serves the child’s best interests.

As an extension of the court’s authority, custody evaluators are protected by quasi-judicial immunity. As a result, custody evaluators are immune from legal action for matters involving the performance of their court-appointed duties.

Challenging the Custody Evaluator’s Recommendations

Under California law, a person must meet certain requirements to qualify as a court-appointed custody evaluator. In general, custody evaluators are highly trained and educated professionals who possess a minimum level of work, research, or clinical experience. The qualifications of a custody evaluator are outlined in the California Rules of Court, Rule 5.220. Furthermore, custody evaluators must have completed the domestic violence and child abuse training program prescribed under California law.

Although a custody evaluator can be challenged based on their qualifications, their failure to adhere to the provisions of Rule 5.220 does not necessarily imply that the evaluator should be removed or that their report should be excluded at trial. Instead, the court will consider defects in the evaluator’s qualifications as affecting the weight of their findings, not the overall admissibility of their report.

In the majority of custody cases, the court has an interest in restricting the use of an expert custody evaluator to the court-appointed evaluator. This helps prevent a situation where the court must weigh competing expert claims regarding highly sophisticated scientific concepts.

However, if allowed, the legal authority for a competing evaluator expert hired by the parties can be found in California Evidence Code § 733, which states “Nothing contained in this article shall be deemed or construed to prevent any party to any action from producing other expert evidence on the same fact or matter mentioned in Section 730; but, where other expert witnesses are called by a party to the action, their fees shall be paid by the party calling them, and only ordinary witness fees shall be taxed as costs in the action.”

In extreme cases, a custody evaluator can be challenged based on bias. As agents of the court, custody evaluators must act as impartial third-party investigators. Either party can file a motion to disqualify an evaluator and strike their recommendations from the record.

Courts must carefully consider allegations of evaluator bias because relying on the findings of a biased evaluator is regarded as an abuse of judicial discretion and is grounds for reversing the court’s judgment on appeal.

Ask an Experienced Attorney from Hanson, Gorian, Bradford & Hanich

Child custody proceedings can be stressful and intense, given the stakes involved. If you are concerned about legal issues regarding a child custody dispute, you should consult the professional legal counsel of an experienced family law attorney from Hanson, Gorian, Bradford & Hanich.

For an initial consultation about your case, call us at (951) 506-6654 or contact our office online today.

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