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