BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 594|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 594
Author: Wieckowski (D)
Amended: 5/13/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/5/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Child custody
SOURCE: Author
DIGEST: This bill provides that a child custody evaluation,
investigation, or assessment, and any report conducted pursuant
to that determination may be considered by the court only if it
is conducted in accordance with the minimum requirements set
forth in existing law and case law. This bill does not preclude
consideration of a custody evaluation report that contains
harmless procedural and/or technical errors.
ANALYSIS:
Existing law:
1)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.
SB 594
Page 2
Code Sec. 3020.)
2)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.)
3)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.)
This bill:
1)Provides that 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 Family Code Section 3111.
2)Provides that the above requirement does not preclude the
consideration of a custody evaluation report that contains
harmless procedural and/or technical errors.
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
SB 594
Page 3
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.
Prior Legislation
AB 1843 (Jones, Chapter 283, Statutes of 2014) authorized the
disclosure of a child custody evaluation to the evaluator's
licensing entity for the purpose of investigating allegations of
unprofessional conduct.
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.
SB 594
Page 4
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/13/15)
Domestic Violence Legal Empowerment and Appeals Project
Center for Judicial Excellence
California Partnership to End Domestic Violence
California Protective Parents Association
Crime Victims United of California
Family Violence and Sexual Assault Institute
Incest Survivors' Speakers Bureau
Justice for Children
Five individuals
OPPOSITION: (Verified5/13/15)
Association of Certified Family Law Specialists
Association of Family Conciliation Courts
California Psychological Association
Judicial Council of California
ARGUMENTS IN SUPPORT: The Center for Judicial Excellence
writes:
State-mandated uniform standards of practice and procedure that
were designed to ensure the safety of families in general,
and domestic violence and child sexual abuse victims in
particular, are not always followed or adhered to, often
because of evaluators' confusion or lack of knowledge about
these complex standards. This can result in a lack of
uniform application of the law by the courts. Judges
currently have no effective way to determine whether the
child custody professionals they have assigned to these
cases are informed about and complying with the various
state-mandated practices and procedures. Improperly
prepared evaluation reports pose grave risks to the safety
of California families and children. Family court judges
routinely rely on these reports, often more than any other
evidence in a case, as they work to create outcomes that
SB 594
Page 5
respect and reflect the best interests of the children they
are charged to protect.
ARGUMENTS IN OPPOSITION: The Association of Family
Conciliation Courts (AFCC), in opposition, 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.
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
5/13/15 17:26:19
**** END ****