BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1843 (Jones, Gordon)
As Amended June 9, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
NR
SUBJECT
Child custody evaluations: confidentiality
DESCRIPTION
This bill would authorize the disclosure of a confidential child
custody evaluation to the licensing entity of an evaluator for
the purposes of investigating allegations of unprofessional
conduct by the child custody evaluator, or in a criminal, civil,
or administrative proceeding involving the child custody
evaluator. This bill would provide that a disclosure of the
confidential written report to the licensing entity of a child
custody evaluator is not an unwarranted disclosure.
This bill would also require the board, upon receipt of a child
custody evaluation, to notify the non-complaining party in the
underlying child custody dispute who is a subject of that
report, of the pending investigation.
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.
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The testing may further demonstrate the family dynamics and
expose any potential mental health or parenting problems. The
evaluation must comply with standards adopted by the Judicial
Council which specify the qualifications of the evaluator, as
well as the scope of the evaluation.
The qualifications, set out in Rule of Court 5.225, include
general education and training requirements as well as specific
domestic violence training requirements. In addition, an
evaluator must have participated in at least four partial or
full court-appointed child custody evaluations within the past
three years, except as specified. Each court must adopt local
rules to accept and respond to complaints about an evaluator's
performance. The procedural rules, set out in Rule of Court
5.220, also 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.
A child custody evaluator who is licensed by the Medical Board
of California, the Board of Psychology, or the Board of
Behavioral Sciences is subject to disciplinary action by that
board for unprofessional conduct. The Board of Behavioral
Sciences claims that it receives approximately 200 complaints of
unprofessional conduct per year related to its licensees serving
as child custody evaluators which it must investigate. The
confidential child custody evaluation, however, may only be
provided to a party, a court or judicial officer, law
enforcement, or minor's counsel. Any other person who wishes to
see the evaluation must petition the court and show good cause
as to why he or she needs the report. This bill, sponsored by
the Board of Behavioral Sciences, would authorize the licensing
entity of a child custody evaluator to receive a report for the
purposes of investigating allegations of unprofessional conduct
by the child custody evaluator, or in a criminal, civil, or
administrative proceeding involving the child custody evaluator.
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CHANGES TO EXISTING LAW
1.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 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, 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 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 authorize the disclosure of a child custody
report to the licensing entity of a child custody evaluator
for the purposes of investigating allegations of
unprofessional conduct by the child custody evaluator, or in a
criminal, civil, or administrative proceeding involving the
child custody evaluator.
This bill would require that all confidential information
including the identity of any minors shall retain their
confidential nature in any proceeding resulting from the
investigation of unprofessional conduct, shall be sealed at
the conclusion of the proceeding, and shall not subsequently
be released. If the confidential information does not result
proceeding, it shall be sealed after the licensing entity
decides that no further action will be taken in the matter of
suspected licensing violations.
This bill would require the licensing entity, upon receipt of
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a child custody evaluation report, to notify the
non-complaining party in the underlying custody dispute of the
pending investigation of the child custody evaluator.
1.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.)
This bill would provide, that for the purposes of the above
two provisions, a disclosure of the confidential written
report to the licensing entity of a child custody evaluator is
not an unwarranted disclosure.
COMMENT
1.Stated need for the bill
According to the author:
The Board [of Behavioral Sciences] is seeking statutory
authority to access a child custody evaluation report for the
purpose of investigating allegations that one of its
licensees, while serving as a child custody evaluator, engaged
in unprofessional conduct in the creation of the report.
Currently, the law does not give the Board direct access to
the child custody evaluation report. This leaves the Board
unable to investigate allegations of unprofessional conduct of
its licensees while they are serving as a custody evaluator,
even though the Board is mandated to do so by law.
2.Bill drafted with input from stakeholders
Concerns regarding unprofessional conduct by some child custody
evaluators were raised in AB 958 (Jones, 2013) which would have
authorized a confidential child custody evaluation to be
disclosed by the court to the licensing board governing an
evaluator upon receiving a written request from the board, or by
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allowing an authorized person to provide a copy to the licensing
board to investigate allegations of unprofessional conduct.
Stakeholders, however, could not agree on how to best address
those issues during the legislative session. In response to the
concerns raised in that bill, a group of stakeholders came
together in March and May of 2014 to discuss future legislation.
These meetings consisted of representatives from the relevant
committees, the professional associations of the Board of
Behavioral Sciences (Board) licensees, representatives from the
Board of Psychology and their professional association,
associations representing family law attorneys, and
representatives from the Administrative Office of the Courts.
At these meetings, there was general consensus that licensees
acting unprofessionally or unethically should be subject to
discipline, and that the confidentiality of the child custody
evaluation reports was essential. However, there were differing
opinions on the conditions under which the report should be made
available. The Attorney General's (AG) office provided an
informal legal opinion evaluating the situation for the Board.
The AG stated:
In light of the uncertainty in the law regarding whether
Division of Investigation investigators are considered law
enforcement officers under this code section, and in the
interest of saving the Board the time, expense, and
uncertainty of petitioning the court for court orders
permitting the disclosure of 730 reports in each and every
case this office recommends that Family Code Section 3025.5 be
amended to specifically identify professional and vocational
licensing boards and their agents and investigators as parties
to whom a 730 report may be disclosed. The amendment should
specify that the report may only be used by the boards for the
purpose of pursuing disciplinary action against licensees who
conduct evaluations and draft 730 reports. Additional
protections may also be included to ensure the confidentiality
of the parties, and especially the children involved.
Accordingly, this bill would incorporate the recommendations of
the AG and input from various stakeholders. In support, Dr.
Ian Russ, a marriage and family therapist, a past Board member,
and former Board chair writes that this bill is "essential for
the Board to meet its responsibility for reviewing complaints
against licensees of the Board and determining whether a
licensed individual has violated either ethics or the law to the
extent of an extreme departure from the standards of practice,
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and/or has committed gross negligence. There are specific tasks
given to the Board in order to protect citizens of the State of
California."
3.Report disclosed for limited purpose of investigating
unprofessional conduct
This bill would allow disclosure of a child custody evaluation
to the evaluator's licensing entity in order to investigate
allegations of unprofessional conduct. 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.
Some stakeholders raised concerns that parents dissatisfied with
a custody determination by the court would automatically seek
review of the professional conduct of the evaluator who
submitted a report that the court may have relied on. However,
according to the Board, not all allegations lead to an
investigation, and not all investigations result in a
determination of unprofessional conduct. Thus, arguably few
complaints ultimately reach the level where the Board makes a
determination of unprofessional conduct. Furthermore, staff
notes that an investigation as to unprofessional conduct would
not invalidate a child custody evaluation report. However, if
unprofessional conduct is found, it may be relevant to a court's
custody determination, depending on whether or not the court
relied on the evaluation. Accordingly, this bill would require
the Board to notify the non-complaining party in the underlying
custody dispute of the pending investigation of the child
custody evaluator.
4.Confidentiality of parties to underlying custody dispute
maintained
Initially, stakeholders expressed concerns regarding the
confidentiality of the information contained in a child custody
evaluation report, and whether that information would be
compromised in the event that the Board pursued an investigation
into the conduct of the evaluator. The Board noted that it
handles confidential information on a daily basis including
patient notes and psychological evaluations, and its
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investigators are trained to handle highly sensitive
information.
However, to ensure that the confidentiality of the information
in the report is maintained, this bill would require that all
confidential information, including the identity of any parties
and minors, retain its confidential nature in any proceeding
resulting from the investigation of unprofessional conduct and
shall be sealed at the conclusion of the proceeding. If the
confidential information does not result proceeding, the
information shall be sealed after the licensing entity decides
that no further action will be taken in the matter of suspected
licensing violations.
5.Unauthorized disclosures
Under existing law, if the court determines that an unwarranted
disclosure of a child custody evaluation has been made, the
court may impose a sanction in an amount sufficient to deter
similar future conduct against the disclosing party. (Fam. Code
Sec. 3111(d).) This bill would provide that a disclosure of the
confidential written report to the licensing entity of a child
custody evaluator is not an unwarranted disclosure.
This provision has been met with opposition by two family law
groups, the Association of Family and Conciliation Courts (AFCC)
and the Executive Committee of the Family Law Section of the
State Bar of California (FLEXCOM), who argue that this exception
from the general rule would create confusion and expose parties
to risk of sanction. FLEXCOM writes:
The proposed amendment to Family Code Section 3025.5 contains
specific excepted individuals and entities to whom a report
may be released. As is indicated in 3025.5 a party, his or
her attorney, minor's counsel, specific individuals listed,
and those that the court may allow for good cause are all
excepted from the disclosure prohibition. This proposed
language would add the licensing boards to the list of
exceptions. If adopted the statute would allow disclosure to
the licensing boards.
3111 (b) as amended, already states that the report shall not
be made available "other than as provided in subdivision (a)
of Section 3025.5?" Thus, the list in 3025.5(a) is already
recognized in 3111 as an exception. 3111(g) is not needed,
and in fact, is confusing because it singles out one category
of authorized recipient when the others are equally
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authorized.
Accordingly, the author offers the following amendment which
would strike the proposed language providing that releasing a
report to a licensing entity is not an unwarranted disclosure.
This will allow licensing entities to receive the reports to
investigate allegations of unprofessional conduct, while
ensuring the court maintains the ability to sanction parties who
release the report for any other reason.
Author's amendment:
Page 6, strike lines 19-21
Support : Association of Family Conciliation Courts (if
amended); Board of Psychology; Executive Committee of the Family
Law Section of the State Bar (if amended); an individual
Opposition : None Known
HISTORY
Source : The Board of Behavioral Sciences
Related Pending Legislation : None Known
Prior Legislation :
AB 958 (Jones, 2013) would have authorized a confidential child
custody evaluation to be disclosed by the court to the
licensing board governing evaluator upon receiving a written
request from the board, or by allowing a person who is permitted
to possess the written confidential report to provide a copy to
the licensing board to investigate allegations of unprofessional
conduct. This bill died in the Assembly Judiciary Committee.
AB 1877 (Adams, Chapter 215, Statutes of 2008) provided that the
unwarranted disclosure of a child custody evaluation report may
result in the imposition of sanctions by the court, as
specified.
AB 612 (Ruskin, 2007) would have limited when, in connection
with a child custody evaluation, the court can order the
psychological testing or diagnosis of a parent and who can
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perform such testing. This bill died on the Senate Inactive
File.
AB 2853 (Salinas, Chapter 130, Statutes of 2006) codified a Rule
of Court requiring initial and continuing domestic violence
education for court counselors, evaluators, investigators and
mediators involved in child custody matters.
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.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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