Child custody evaluators who fail to fully comply with California Rules of Court, rules 5.220, 5.225, 5.230, 5.235 and 5.250 may find their work product excluded from evidence when new legislation comes into effect in 2016.  Under In re the Marriage of Laurenti (2007) 154 Cal.App.4th 395, trial courts have the authority to require evaluators to refund the fees and costs advanced to child custody evaluators by the parties.  Thus evaluators whose work product is excluded from evidence are likely to face Laurenti motions.  Evaluations that are now in progress may face unexpectedly rigorous scrutiny when reports or testimony are offered into evidence next year.  In light of the new legislation, evaluators, lawyers, reviewing experts, and judges are taking a closer look at the CRC requirements, and anticipating more challenges to child custody evaluations.

Child custody evaluations have been under increasing scrutiny and challenges in California for the past decade.  The newly-­enacted amendment to Family Code §3111 (SB 594, effective January 1, 2016, will require exclusion of some flawed evaluations from evidence.  The new language reads,

A child custody evaluation, investigation, or assessment, and any resulting report, may be considered by the court only if it is conducted in accordance with the requirements set forth in the standards adopted by the Judicial Council pursuant to Section 3117; however, this does not preclude the consideration of a child custody evaluation report that contains nonsubstantive or inconsequential errors or both.

California’s appellate courts have addressed cumulative and prejudicial errors by child custody evaluators in four published decisions – In re Marriage of  Seagondollar (2006) 139 Cal.App.4th 1116; In re Marriage of Laurenti, supra;  In re Marriage of Adams and Jack  A. (2012) 209 Cal.App.4th 1543; and Leslie O. v. Superior Court (2014) 231  Cal.App.4th 1191.  Seagondollar protected the right of a custody litigant to present the testimony of a reviewing expert, charged judicial officers with defining the purpose and scope of an evaluation, and required exclusion of an evaluation where the evaluator and minors’ counsel had material ex parte communications.  Laurenti also charged family law courts with defining the purpose and scope of an evaluation in an appointment order, supervision of evaluators, and of the fees payable to a disqualified child custody evaluator.  Adams and Leslie O. address exclusion of the evaluator’s report and testimony due to evaluator bias, and prejudicial errors by the evaluators under California Rules of Court, Rule 5.220.

Senate Bill 594 was introduced following the decision in In re the Marriage of Winternitz (2015) 235 Cal.App.4th 644 affirming a family court ruling that flaws in the evaluation process went to the weight and sufficiency of the evaluation, rather than admissibility.  The Association of Certified Family Law Specialists (ACFLS) successfully sought publication of Winternitz.  As co-chair (with Steve Temko, CALS, CFLS) of the ACFLS amicus committee, I explained the importance of the decision to in the publication request letter,

Just as there are no perfect trials, there are no perfect child custody evaluations.  In most cases, evidence of deviations from best practices should go to the weight and sufficiency of the report and testimony, not to the admissibility.  But Winternitz would be the first published case to affirm a trial court that admitted and weighed the child custody evaluation report and testimony together with the rest of the evidence presented.  Most flaws in the procedures are not fatal – the Court does not consider the fact-­finding and analysis of the evaluator in a vacuum.  The parties present additional evidence, authority and argument that help shape the judge’s consideration of the evaluation and the underlying case.

California has no published opinions addressing when flaws in a child custody evaluation go to the weight and sufficiency of the evaluator’s report and testimony rather than to admissibility.  Publication of the Winternitz decision will prevent the issue from being relitigated in California trial courts without guidance from the Court of Appeal.  Challenges to the admissibility of child custody evaluation reports and testimony often cause delay in resolution of time-­urgent issues affecting children, great expense for the adult litigants (often including the cost and delay of re-evaluation), and strain the limited resources of family law courtrooms.

It is important for judges, lawyers and litigants to know that while the most egregious errors by custody evaluators call for exclusion of the evaluation evidence, most errors are addressed in the Court’s consideration of the weight and sufficiency of the evaluation.  Publication will promote wiser decisionmaking about which errors or omissions cause true prejudice to the litigants, and which can be considered with other evidence without “throwing the baby out with the bathwater.”  Consequently, the holding meets the publication criteria of rule 8.1105(c).

The Senate Floor Analysis sets forth the background for the new standard for admissibility of child custody evaluations,

In a contested child custody or visitation proceeding, the court may appoint a child custody evaluator to conduct a child custody evaluation if the court determines it is in the best interests of the child.  Evaluations contain highly personal, sensitive, and confidential information.  In most cases, an evaluation will consist of several interviews and may include psychological testing.  Interviews are conducted with all adults involved with the child, including parents, stepparents, and sometimes other relatives who have a significant role in the child’s life.  Psychological testing provides an additional source of information that cannot be obtained through interviews alone.  The testing may further demonstrate the family dynamics and expose any potential mental health or parenting problems.  These reports can take six to nine months to complete and are generally paid for by the parties.

Although the evaluation may be delegated to a number of different types of experts, impartial objectivity is a non-negotiable requirement and courts are required to make an inquiry if the facts reveal that an evaluator may be biased against one party.  (See Marriage of Adams & Jack A. (2012) 209 Cal. 4th 1543, 1563.)  In addition, because custody evaluators are not judicial officers, they cannot make binding factual determinations or decisions on a custody or visitation  issue.  At best, the evaluator’s report is probative of relevant facts the court must consider and weigh along with all other evidence in the case.  However, recognizing that evaluations are generally given great weight by the judge in deciding custody and visitation issues, the Judicial Council has adopted Rules of Court establishing uniform standards of practice for court-­ordered custody evaluations.  Additional standards regarding evaluator qualifications and testimony are prescribed by statute.  (See Fam. Code Secs. 3110.5, 3115.)  This bill seeks to ensure that evaluator reports are complete by prohibiting the court from considering a report that does not comply with minimum requirements under the law.

The public will benefit from this new legislation if it motivates evaluators to review their evaluation protocols, and bring greater rigor and scientific method to their evaluation work.  Evaluators  must regularly review the CRC requirements at intervals during each evaluation — together with their appointment orders and procedures statements.  Similarly, lawyers, judges and evaluators are going to have to consider whether and when limited scope evaluations are sufficiently reliable to address the complexities of families and their life circumstances.  That decision requires us to compare that limited reliability with the reliability of the evidence and analysis offered by lawyers and self-­represented litigants without an evaluation.  Lawyers, evaluators, and judges must develop stronger, clearer appointment orders and procedure statements that provide a clear road map for all participants.  This  heightened level of care is apt to increase the time required, and hence the cost of evaluations.  And the new standard for admissibility is a potentially powerful tool for litigants to challenge custody evaluations.

The legislation does not use the term “minimum requirements,” nor define “nonsubstantive or inconsequential errors,” leaving room for judicial discretion when ruling on motions in limine to exclude child custody evaluations.  But the legislation sends a clear message to family courts that they are charged with a significant gatekeeping role.  The phrase “nonsubstantive or inconsequential errors” should be read in harmony with the California Constitution’s requirement that only “prejudicial” judicial errors warrant reversal.  Where the error by the evaluator is not likely to change the outcome of the underlying case, it should fall into the category of “nonsubstantive or inconsequential errors.”

Evaluators and reviewing experts are going to be asked to address whether errors in the evaluation process are sufficiently serious that they are apt to change the outcome of the case.  In many cases, the report contains data and analysis that is useful to the Court’s independent fact-­finding and judgment when considered with other evidence and analyses.  Clearly the Legislature wants to remind judges not to just outsource custody decisions to child custody evaluators.  But the testimony of the evaluator (as we see in Winternitz) and of testifying experts can assist the trial court in deciding what, if anything, in the evaluation can contribute meaningfully to the court’s understanding of the risks and benefits of alternate parenting plans.  No one likes being the subject of peer scrutiny — including evaluators.  However, it is important to bear in mind that in many cases, the reviewing expert advises counsel and party that the evaluator did an adequate job, and that a challenge to  the evaluation is not a wise option.  Those reviews are often invisible to the evaluators whose work product is reviewed.

This heightened standard for admissibility presents many challenges.  CRC rule 5.220 is far from a model of drafting clarity.  For example, the provision that evaluators “Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist,” is problematical.  Because due process requires that the parties, lawyers, experts, and judge can understand and challenge all of the data considered by the evaluator, this provision could be read to preclude consideration of the child’s therapy records or interview of the child’s treating therapists.  Perhaps the best practice is to inform the parties and counsel (including minors’ counsel) that waiver of the child’s confidentiality and privilege rights for purposes of the evaluation will result in the parents, lawyers, retained experts and court having access to that information.  Moreover, since the Family Code does not extend the restrictions on distribution of child custody evaluation reports to transcripts, file material, quotations from evaluation reports or testimony in pleadings, etc., this information may end up exposed to the public or the press.

Exclusion from evidence presents a whole host of challenges.  What happens to the family when an evaluation is excluded from evidence?  Should the court appoint a new evaluator or decide the case based on the evidence and arguments without an evaluation?  Is a Laurenti fee refund order necessary to fund a second evaluation?  If the evaluation is excluded, the parties and  counsel are going to need time for more formal discovery, and to marshal evidence and arguments for presentation without the evaluation.  Should that evaluator have access to the data and analysis of the first evaluation?

Few family law bench officers are familiar with the extensive child custody evaluation literature — or the standards and guidelines for evaluations promulgated by professional organizations.  They are going to need the assistance of expert testimony to determine the materiality of deviations from the CRC.  In truth, few litigants can afford to try custody cases post-­evaluation, and even fewer can afford evaluator testimony and retained experts.  Thus, like all aspects of child custody litigation, there will be a significant economic disparity in the impact of this legislation on California’s families.