BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 594 (Wieckowski)
Version: April 27, 2015
Hearing Date: May 5, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Child custody
DESCRIPTION
This bill would require that a child custody evaluation,
investigation, assessment, or report conducted pursuant to a
contested hearing involving child custody, may only be
considered by the court if the evaluation, investigation, or
assessment is conducted in accordance with the minimum
requirements provided under existing law.
BACKGROUND
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
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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.
CHANGES TO EXISTING LAW
Existing law provides that the health, safety, and welfare of
children is the court's primary concern when determining the
best interests of a child for custody and visitation orders.
(Fam. Code Sec. 3020.)
Existing law authorizes the court, in a contested child custody
or visitation proceeding to appoint an evaluator to conduct a
child custody evaluation, from whom the court may require a
written, confidential report on the evaluation that is filed
with the clerk and served on the parties or their counsel and
any minor's counsel. (Fam. Code Sec. 3111.)
Existing law requires that the confidential child custody report
only be made available to the parties or their counsel, any
minor's counsel, a court, child protective services, a probation
officer, or a guardianship investigator. (Fam. Code Sec. 3111.)
Existing law provides that the confidential child custody report
may not be disclosed except to the following:
a party to the proceeding and his or her attorney;
a federal or state law enforcement officer, licensing entity,
judicial officer, court employee, or family court facilitator
of the superior court of the county in which the action was
filed, or an employee or agent of that facilitator, acting
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within the scope of his or her duties;
minor's counsel appointed for the child; or
any other person upon order of the court for good cause.
(Fam. Code Sec. 3025.5.)
Existing law establishes qualifications for child custody
evaluators and requires initial and continuing domestic violence
training for child custody mediators, investigators, and
evaluators. (Fam. Code Secs. 1816, 3110.5, 3117.)
Existing law requires that local rules include a complaint
procedure for mediators and evaluators. (Cal. Rules of Ct.,
Rules 5.210, 5.220.)
This bill would provide that a child custody evaluation,
investigation, or assessment, and any report conducted pursuant
to that determination shall be considered by the court only if
the evaluation, investigation, or assessment is conducted in
accordance with the minimum requirements set forth in this
section in determining custody or visitation rights.
COMMENT
1.Stated need for the bill
According to the author:
Unfortunately, state-mandated uniform standards of practice
and procedure designed to ensure the safety of families in
general, and domestic violence and child sexual abuse victims
in particular, are not always being fully implemented by
professionals, often due to confusion or lack of knowledge
about those standards. This can result in a lack of uniform
application of the law by the courts, which have no efficient
way to determine whether child custody professionals providing
reports to them are aware of and have complied with
state-mandated practices and procedures. Improperly prepared
reports pose great risks to the safety of families and
children, as they are routinely utilized as powerful evidence
bearing on the best interest of the children. Because an
estimated 85 percent of family court litigants are
self-represented, they are unable to mount legal challenges to
child custody reports that are not conducted properly.
2.Would prohibit court from weighing probative value of report
with harmless procedural errors
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A court may appoint a child custody evaluator to assist in
making a custody determination if in the best interest of the
child. Existing Rules of Court extensively outline what
information the evaluator is supposed to gather, how he or she
should conduct herself or himself during the process, and how
the information should be presented to the parties and the
court.
Specifically, these procedural rules require that all
evaluations include a written explanation of the purpose of the
evaluation, the procedures used, and the scope of the report.
Data collection and analysis must allow the evaluator to observe
each party in comparable ways and "to substantiate
interpretations and conclusions regarding each child's
developmental needs; the quality of attachment to each parent
and that parent's social environment; and the reactions to the
separation, divorce, or parental conflict." The evaluator must
consider the health, safety, welfare, and best interest of the
child and strive to minimize the potential for psychological
trauma to children during the evaluation process. (Rule of Ct.
5.220.)
This bill, largely in response to a recent appellate decision
which held that it was not an abuse of discretion for the trial
court to consider an evaluator's report even though the
evaluator did not strictly comply with all legal requirements,
would prohibit a court from considering an evaluator's report if
the evaluation was not conducted in accordance with the minimum
requirements. (In re Marriage of Winternitz, 235 Cal.App.4th
644.) In that case the court noted:
Generally, once it is established that a witness has adequate
credentials to qualify as an expert, questions as to the
degree of his or her expertise go to weight not admissibility.
For example, the fact that a witness did not document all
work, took some inaccurate notes or deviated from protocol are
all matters going to weight, not admissibility. Additionally,
lapses in professionalism affect only the weight of the
evidence. (Id. at 653)
According to the author, some stakeholders claim that this case
represents a dramatic departure from current established law,
"flies in the face of the mandatory nature of evaluation
standards, and would create a case-by-case free-for-all that
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very few parents can afford to challenge." The Center for
Judicial Excellence, writes in support that this bill "would
greatly improve child safety and court efficiency by promoting
uniform and complete investigations that comply with mandatory
minimum standards of practice; enhancing interagency
cooperation, and providing guidance and accountability for
professionals who issue child custody and visitation reports and
recommendations."
The Association of Family Conciliation Courts (AFCC), in
opposition, argues that this bill would have the effect of
forcing the court to reject a report for even a harmless,
procedural error. AFCC writes:
The stated goal of this [bill] is to increase/ensure the
quality of evaluations done in custody cases. The Board of
Directors of AFCC and our members share the ultimate goal of
quality and productive custody evaluations. The proposed
legislation does not provide such an assurance. It basically
mandates that if an evaluator is found to have not confirmed ?
that they did a step/act mandated by the code, the whole
report is automatically inadmissible, regardless of how
relevant in any way that particular step/act is to the
ultimate issue/recommendation. ? In reviewing a report from an
evaluator, the court should be able to determine exactly what
the evaluator did/did not consider/do in completing the
assigned task. ? [This bill] would totally eliminate the
court's necessary discretion to consider any error in the
process as "harmless" regarding the underlying issues and
ultimate recommendation. Courts have the power to reject any
evaluation that the court concludes is so poorly done as to be
of no assistance or that it concludes is so tainted by the
bias of the evaluator as to render that evaluator's opinion
worthless.
The Association of Certified Family Specialists (ACFLS), also in
opposition, writes, "ACFLS supported the publication of In re
Marriage of Winternitz. The Winternitz Court found that while a
report and evaluator's testimony may come in as evidence despite
procedural deficiencies made by the evaluator, the Court has the
discretion to give the proper weight to the testimony and
evidence presented. This proposed legislation would take that
discretion away from the Court."
In order to address the issue raised by the opposition, the
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following amendment would prohibit a court from considering a
report that does not substantially comply with established
standards, but would also ensure that the court has the
discretion to consider a report that contains harmless,
procedural errors. Arguably, this amendment strikes an
appropriate balance and will allow courts to consider evidence
from a report, even if that report does not fully comply with
existing law, in an effort to best protect the interest of the
children at issue.
Suggested amendment:
Family Code Section 3111 is amended to read:
(a) 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. 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 minimum requirements set forth in this section. This
section does not preclude consideration of a custody evaluation
report that contains harmless procedural and/or technical
errors.
3.Licensing entities investigate allegations of unprofessional
conduct
The author writes that this bill is needed to ensure "uniform
statewide compliance and that ALL protocols and requirements
when conducting child custody evaluations are met." However, the
California Psychological Association (CPA), in opposition to
this bill, argues that "there are meaningful protections and
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avenues for consumer redress in the system. All consumers of
psychological services can submit complaints about the conduct
or actions of licensed psychologists to the California Board of
Psychology. Just last year, AB 1843 (Jones and Gordon, Ch. 283,
Stats. 2014) was signed into law that allows for greater access
to custody reports by the licensing boards."
AB 1843, brought in response to concerns regarding the
unprofessional conduct of some child custody evaluators and
negotiated by a large group of stakeholders, authorized the
disclosure of a child custody evaluation to the evaluator's
licensing entity for the purpose of investigating allegations of
unprofessional conduct. This Committee noted in it's analysis
of that bill that "while existing law requires courts to have a
process by which parties may complain about mediators and
evaluators, arguably it is not the role of the court to
independently review all allegations that a parent may have
about an evaluator. Thus, the complaints made by parties to the
court regarding an evaluator largely go to the weight the court
may give the evaluation in determining custody."
CPA further notes that a significant challenge in completing
full evaluations is a lack of access to requested information in
a timely manner, and suggests, along with AFCC, requiring strict
timelines by which child welfare offices and law enforcement
must provide copies of records regarding the investigation to
the evaluator.
Staff notes that stakeholders, both in support and opposition of
this bill, have expressed a desire to improve the current
process by which child custody evaluations are completed.
Accordingly, the author may wish to continue working with
stakeholders on this issue.
Support : California Protective Parents Association; Center for
Judicial Excellence; Domestic Violence Legal Empowerment and
Appeals Project; Incest Survivors Speakers Bureau; one
individual
Opposition : Association of Certified Family Law Specialists;
Association of Family Conciliation Courts; California
Psychological Association; Judicial Council of California
HISTORY
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Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 1843 (Jones and Gordon, Chapter 283, Statutes of 2014) see
Comment 3.
SB 1284 (Morrow, Chapter 102, Statutes of 2004) clarified
procedures for ensuring that confidential reports containing
psychological evaluations of a child, recommendations regarding
custody of and visitation with a child, and written statements
of issues and are placed in the confidential portion of the
court's files.
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