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The appointment of an expert to conduct an independent child custody investigation and evaluation, which results in a written report issued to the Court, is an often confusing issue. Particularly, the most common questions divorce and custody litigants ask include:
- When are child custody and visitation evaluators appointed?
- What kind of experts serve as custody evaluators?
- Why are child custody and visitation evaluators appointed by the Court?
- Who pays for a child custody evaluator’s services?
- What kinds of things does a child custody investigator/evaluator consider?
- What are the rules concerning the report issued by a child custody evaluator?
- Am I allowed to communicate with the custody evaluator working on my case?
- Is my attorney involved throughout the custody evaluation process?
- Does a child custody evaluator talk with my child?
- What if I don’t agree with a custody evaluation report?
These are all wonderful questions, and the answers and discussion points are listed below. It is important to understand the law regarding custody evaluations before delving into the specific answers to these important questions.
Child Custody Evaluations Generally
When child custody evaluators are being discussed by attorneys and the Orange County Family Court judge assigned to your case, you will hear various code sections being discussed in court. Primarily, you will hear “Evidence Code 730” and “Family Code 3111” commonly mentioned. These are the California statutes that allow the court to appoint an independent, neutral evaluator to assess some particular child custody and/or visitation situation. The scope of the evaluation may vary significantly from case to case depending on the circumstances (more on this below).
Importantly, a “730 expert” or “3111 expert” appointed by the family court judge works for the court. They are not experts retained by either party, although the parties have the right to hire their “own” expert. They are not permitted to favor either party. An Evidence Code 730 expert can be appointed by a court for any number of reasons for any kind of civil case, which includes a child custody evaluation expert for family law cases.
Family Code Section 3111(a) is the primary section to review when the question arises as to whether an evaluator should be appointed:
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. The child
custody evaluation shall be conducted in accordance with the standards adopted by the Judicial Council pursuant to Section 3117,
and all other standards adopted by the Judicial Council regarding child custody evaluations. If directed by the court, the
court-appointed child custody evaluator shall file a written confidential report on his or her evaluation. At least 10 days before
any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will
be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. The
report may be considered by the court.
Nearly always the standard for any order or judgment that concerns children is, “Is this order in the best interests of the child or children?” The appointment of an evaluator is no different and serves as the threshold question of whether an evaluator should be appointed. If the appointment of an evaluator will not be in the best interests of a child, the analysis stops there and the court will not proceed further. For example, if a child is 17 years old and it is likely that an evaluation report and litigation regarding the report will not be completed before the child’s 18th birthday, it is not in the child’s best interests to have to participate in the evaluation because once the child turns 18, the court loses jurisdiction to make any custody orders.
It is equally important to remember that a custody evaluator’s report is confidential and may only be distributed to certain individuals (usually the parties, their attorneys and relevant experts, and the court). The family court judge may impose sanctions against a person that discloses the contents of a report in violation of the statute.
When are child custody and visitation evaluators appointed?
A child custody investigator/evaluator is appointed after a hearing in family court. Usually, one of the parties makes a request for the appointment of such an expert. Sometimes, the parties stipulation (i.e. agree) that a custody evaluator should be appointed and the court will approve that agreement. In other instances, the court is permitted to sua sponte appoint such an expert without either party even requesting the appointment of such an evaluator (sua sponte means on the court’s own motion).
What kinds of professional people serve as child custody evaluators?
Family Code 3110 states, “As used in this chapter, “court-appointed investigator” means a probation officer, domestic relations investigator, or court-appointed evaluator directed by the court to conduct an investigation pursuant to this chapter.”
In reality, it would be extremely rare for the Orange County Family Court judge or commissioner to appoint someone other than a licensed psychologist (Ph.D.) that specializes in conducting these types of evaluations.
Why are child custody and visitation evaluators appointed by the Court?
Family Code 3111 evaluators are appointed at the Court’s discretion, which means when the judge feels like such an appointment is appropriate based on the circumstances of a particular case. As noted above, the threshold question is whether an evaluation will serve a child’s best interests. The question of whether a judge will believe that the appointment of a custody evaluator would be appropriate for a particular case is the case of much consternation amount family law attorneys and litigants. Every judge is different and have different views about the appropriateness of an evaluation.
Our child custody attorney in Orange County, Brian Mullen, has extensively handled cases involving the appointment of child custody experts, even for the most complex matters including international move away cases. We can foresee situations where the court would be more inclined to appoint a Family Code 3111 evaluator, including:
- Where one party is seeking a move away to another state or country;
- Where parents have a high-conflict relationship;
- Where a child has special needs;
- Where a parent is requesting a complete change of custody;
- Where the fitness of one parent is questionable;
- Where a person is requesting guardianship of a child;
- Where there are possible alienation issues; and
- Where there is a history of domestic violence.
Who pays for a child custody evaluator’s services?
Family Code 3112(a) states:
Where a court-appointed investigator is directed by the court to conduct a custody investigation or evaluation pursuant to
this chapter or to undertake visitation work, including necessary evaluation, supervision, and reporting, the court shall inquire into
the financial condition of the parent, guardian, or other person charged with the support of the minor. If the court finds the parent,
guardian, or other person able to pay all or part of the expense of the investigation, report, and recommendation, the court may make an
order requiring the parent, guardian, or other person to repay the court the amount the court determines proper.
Most often the court, in practice, will hold a hearing on who should pay for an evaluator’s services at the time the court makes the appointment. If the parents or guardian earn close to the same amount of money or have some assets to pay for the evaluation, the court will order the parties to share in the expense equally. Each party is required to fill out an Income and Expense Declaration for this hearing.
What kinds of things does a child custody investigator/evaluator consider?
ters an order for appointment. Contact your attorney to discuss this issue. The investigator/evaluator will consider anything that he or she is ordered to evaluate. Usually, the parties will discuss and agree on the scope of the evaluation (e.g. whether a parent should be allowed to move with a child, what custody arrangement is in the best interest of a child, etc.) The Court may also order a specific scope for the evaluation.
What are the rules concerning the report issued by a child custody evaluator?
As mentioned above, a report issued by a custody evaluator is confidential and cannot be disseminated to unapproved persons. Each party is permitted the opportunity to receive and review a custody evaluation at least 10 days in advance of a hearing.
Interestingly, unless the parties stipulate that a report is admissible into evidence, one party will have to call the evaluator to court as a witness to lay a foundation for the admissibility of the report. Normally, parties stipulate that a report will be automatically entered into evidence, subject to each party’s right to cross-examine the evaluator and offer their own evidence to rebut the findings.
Am I allowed to communicate with the custody evaluator working on my case?
Yes. There are no prohibitions for a party being evaluated from contacting an evaluator. Of course, each custody evaluator will have their own set of rules for contact that should be obeyed.
Is my attorney involved throughout the custody evaluation process?
Yes, your attorney’s involvement is absolutely critical long before the court even enters the order of appointment. We have been successful in cases starting with the verbiage used in the stipulation to appoint a custody expert so that everyone is clear as to what standard is to be used, how a report will be entered into evidence, etc.
During the evaluation process, your attorney will likely have telephone conferences with the opposing counsel and evaluator to determine status, talk about specific issues that may arise, and so forth. Your attorney should also counsel you as to the process and prepare you for your interactions with the evaluator. In short, your attorney can and should be involved.
Does a child custody evaluator talk with my child?
Yes, the custody and visitation investigator / evaluator will interact with your children, often on many more than one occasion. Usually they will meet with each parent and the child together, all parents and child together, and perhaps with the child alone depending on the age of the child.
What if I don’t agree with a custody evaluation report?
You have several options if you do not agree with an expert’s opinion and evaluation. We have handled cases where the judge ultimately did not adopt a recommendation of a child custody evaluator based on how we challenged the report and findings. Working against a difficult report is extremely challenging and we would suggest contacting our office to discuss how we can help.
For more information about child custody and visitation issues in Irvine, Newport Beach, Huntington Beach, Anaheim and everywhere else in Orange County, California, contact our office today for a free, private consultation. You can also visit our custody information page here.