BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 594
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          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.










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          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  










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            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  










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          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  










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               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  










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          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  










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               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  










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          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:












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          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