BILL ANALYSIS Ó SB 594 Page 1 Date of Hearing: June 23, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 594 (Wieckowski) - As Amended June 11, 2015 PROPOSED CONSENT SENATE VOTE: 36-0 SUBJECT: CHILD CUSTODY EVALUATIONS KEY ISSUE: SHOULD CHILD CUSTODY EVALUATIONS ONLY BE ADMITTED IN COURT IF THEY COMPLY WITH EXISTING STATUTORY AND REGULATORY REQUIREMENTS, UNLESS THE NONCOMPLIANCE IS NONSUBSTANTIVE OR INCONSEQUENTIAL? SYNOPSIS Child custody evaluations are used in the most contentious child custody cases and involve thorough clinical interviews and observations of the child, the parents, and others to determine which custody arrangement is in the best interests of the child. These in-depth evaluations can take many months to complete, cost thousands of dollars and can greatly influence the court's ultimate custody determination. This bill, crafted in response to a recent appellate court case that upheld a trial court's consideration of a child custody evaluation, even though the evaluation contained significant errors (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644), seeks to exclude child custody evaluations from consideration by a court if the evaluations fail to comply with minimum statutory and regulatory requirements. However, to make sure that essentially compliant reports are not unnecessarily excluded and to address concerns raised about a previous version of the bill, this bill now permits a court to consider an evaluation if it contains only nonsubstantive or inconsequential errors. As a result, all opposition has been removed. SB 594 Page 2 The author states that this bill is necessary to enhance administrative efficiency and improve child protection, particularly for the vast majority of unrepresented family law litigants. Supporters include the California Partnership to End Domestic Violence, the Center for Judicial Excellence, the Child Abuse Prevention Center, and the Los Angeles County District Attorney's Office. SUMMARY: Provides that a court may only consider a child custody evaluation if it complies with existing requirements. Specifically, this bill provides that any child custody evaluation, investigation, or assessment and any resulting report may only be considered by the court if it is conducted in accordance with the requirements set by the Judicial Council, however allows a court to consider a child custody evaluation that contains nonsubstantive or inconsequential errors, or both. 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. (Family Code Section 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. (Family Code Section 3111.) 3)Requires that the confidential child custody report only be made available to specified individuals, including the parties and their counsel, the court, child protective services, a probation officer, and the evaluator's licensing entity. (Id.; Section 3025.5.) 4)Establishes qualifications for child custody evaluators and SB 594 Page 3 requires initial and continuing domestic violence training for child custody mediators, investigators, and evaluators. (Family Code Sections 1816, 3110.5.) 5)Requires the Judicial Council to develop standards for child custody evaluations. Requires evaluations to include, among other things: a) An explanation of the purpose, scope, procedures used and costs; b) Specified data collection and analysis; c) Disclosure of the sources of the information gathered and the time spent by the evaluator in the course of preparing the evaluation; d) Discussion of the quality of the child's attachment to each parent and that parent's social environment, and the child's reactions to separation, divorce or parental conflict; and e) All relevant information, even evidence which does not support the evaluator's conclusion. (Family Code Section 3117; California Rules of Court, Rule 5.220.) 6)Requires that local rules of court include a complaint procedure for child custody evaluators. (California Rules of Court, Rule 5.220.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: In a contentious child custody case, a court can decide to order a child custody evaluation to help the judge decide the outcome of the case. The evaluation is prepared by an evaluator, who may be a psychologist or other expert and who must meet the education, experience and training standards established by the Judicial Council, as required by the Legislature. This bill, crafted in response to a recent appellate court case that upheld a trial court's considerations SB 594 Page 4 of a child custody evaluation, even though the evaluation contained significant errors, seeks to exclude those child custody evaluations from consideration by a court where the evaluations fail to comply with minimum statutory and regulatory requirements. However, to make sure that essentially compliant reports are not unnecessarily excluded, this bill permits a court to consider an evaluation that contains only nonsubstantive or inconsequential errors. In support of this bill, the author and supporters write: 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 risk 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% of family court litigants are self-represented, they are unable to mount legal challenges to child custody reports that are not conducted properly. Senate Bill 594 will establish consistent compliance with state mandated minimum standards under existing law that guide child custody professionals when conducting child custody evaluations, investigations, and assessments to enhance administrative efficiency and improve child SB 594 Page 5 protection. Contested Child Custody Cases and Child Custody Evaluations. In contested child custody or visitation proceedings, the court may appoint a child custody evaluator to conduct an evaluation if the court determines it is in the best interests of the child. 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 significant roles 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 months to a year to complete, can cost thousands, if not tens of thousands, of dollars, and are generally paid for by the parties. They also contain highly personal, sensitive, and confidential information. 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.App.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, it is widely acknowledged that custody evaluations are given great weight by judges deciding contested custody cases. (Id., quoting Hogoboom and King, Cal. Practice Guide: Family Law, 7-83 - 7-84 (Rutter Group 2012).) Recognizing this, the Legislature directed the Judicial Council to adopt Rules of Court establishing uniform standards of practice for court-ordered custody evaluations, which the Judicial Council did. (Section 3117; Rule of Court, Rule SB 594 Page 6 5.220.) Additional standards regarding evaluator qualifications and testimony are prescribed by statute and rule of court. (See Sections 3110.5, 3115; Rule of Court, Rule 5.225.) A Recent Appellate Court Case Permitted Courts Broad Discretion to Consider Custody Evaluations Even if They Do Not Comply with Statutory and Regulatory Requirements. Today, a trial court has broad discretion to decide whether to admit a child custody evaluation and that discretion is subject to little appellate review. In In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, a trial court denied a mother's right to move away and switched custody to the father, based in part on an evaluation that even the evaluator admitted contained mistakes. The appellate court found that the evaluator, Dr. Simon, admitted that: [H]e did not produce all of his telephone records because of difficulties in his office, including one person quitting and another person being fired; the last four years of his telephone records were missing from his office; he had "problems galore" in his office and that in the past six to eight weeks, he has started to "wade through the variety of errors" in his records; and he made a mistake by not informing counsel that some of his records were missing. Near the end of cross-examination, after Mother's counsel had questioned Dr. Simon about various errors and flaws, including raising his voice to Mother at one point during an interview, counsel asked him whether someone might question his neutrality. Dr. Simon responded: "There were mistakes made in this evaluation in terms of procedure. That is correct. I've testified to that. And I take those mistakes very seriously, and I hold myself accountable for them. Would I have a question about SB 594 Page 7 whether I was neutral if I was on your side of the ledger? Yes, I would. I absolutely would have that question." (Id. at 650.) The evaluator, however, went on to state that he believed that despite his errors he was neutral in the case. The trial court determined that even though the mother's objection to the evaluation were valid, they were not sufficient to keep the report out. The court admitted the report into evidence and switched custody to the father, as the report recommended. The appellate court reviewing on an abuse of discretion standard, upheld the trial court's actions, stating: Ultimately, it was for the family court to assess the credibility of all the witnesses, including Dr. Simon. (People v. Mercer (1999) 70 Cal.App.4th 463, 466 [82 Cal. Rptr. 2d 723] [credibility of the experts and their conclusions were matters for trier of fact].) As an appellate court, we do not second-guess such evidentiary assessments. Accordingly, the family court did not err when it refused to strike Dr. Simon's report. (Id. at 653.) Thus, even though the evaluator acknowledged not complying with minimum statutory and regulatory requirements, the court admitted the report into evidence and followed its recommendation, and the appellate court did not review whether those decisions were appropriate because they involved evidentiary assessments within the purview of the trial court. This bill does not eliminate judicial discretion, but it does seek to ensure that child custody evaluations, which, as discussed above, are given great weight in court, comply with the established minimum requirements in law. Thus the bill requires compliance with existing Family Code and Rules of Court, but, as discussed below, allows in reports if their SB 594 Page 8 noncompliance is limited to nonsubstantive or inconsequential errors. This Bill Represents a Compromise with All the Stakeholders. The author has worked closely with the stakeholders, including family law practitioners, psychologists, and the Judicial Council, and amended the bill based on their comments. As amended, the bill permits evaluations to be considered by the court even if they fail to comply with the minimum statutory requirements and the requirements set forth in Judicial Council rules, provided that the noncompliance is nonsubstantive or inconsequential. As a result, there is no known opposition to the bill in its current form. ARGUMENTS IN SUPPORT: The Los Angeles County District Attorney's Office writes in support of the bill: There has been compelling testimony that children may have been placed with abusive parents as a result of shoddy custody evaluation reports. This is of particular concern in cases of suspected incest. SB 594 would provide that the reports can only be used where minimum requirements set by Judicial Council are met. The consequences of child abuse and child sexual abuse have been well documented. The resultant trauma can affect a child for the remainder of his or her life and often impacts future generations. It is essential that child custody evaluations follow minimum standards. Prior Legislation: AB 1843 (Jones and Gordon), Chap. 283, Stats. 2014 authorized the disclosure of a confidential child custody evaluation to the licensing entity of the evaluator. REGISTERED SUPPORT / OPPOSITION: SB 594 Page 9 Support California Partnership to End Domestic Violence California Protective Parents Association Center for Judicial Excellence Child Abuse Prevention Center Coalition of California Welfare Rights Organizations Crime Victims United of California Domestic Violence Legal Empowerment and Appeals Project Family Violence and Sexual Assault Institute Incest Survivors' Speakers Bureau of California Justice for Children Legislative Coalition to Prevent Child Abuse Los Angeles County District Attorney's Office Service Employees International Union One individual Opposition (to the current version of the bill) None of file Analysis Prepared by:Leora Gershenzon and Estevan Villarreal / JUD. / (916) 319-2334