CUSTODY EVALUATIONS
One tool the parties involved in resolving a custody dispute can use is a CUSTODY EVALUATION. A custody evaluation typically has two parts. The first is a report which resulting from an evaluation which may include a series of psychological tests, as well as interviews with parentschildren and collateral contacts. This investigation will result in the raw science of a custody report. The second part is a recommendation by the evaluator about custody and visitation. It is important to note that the recommendation is just that, a recommendation. It is not binding law.
The arrival of the custody evaluation allows us to begin to prepare for trial. The results of the investigation help us direct our efforts with regard to presentation of testimony and evidence.
The evaluation is not dispositive of the issues of custody and visitation.
“[7:256] Not conclusive on custody disposition: Custody evaluators, like mediators, are not judicial officers and thus cannot make binding fact determinations or decisions on a custody/visitation issue. At best, as admissible evidence (above {in the treatise}), the evaluator’s report is simply probative of relevant facts the court must consider and weigh along with all other evidence in the case (¶7:212-213). [See Marriage of DeRoque (1999) 74 CA4th 1090, 1096, 88 CR2d 618, 622—court’s refusal to adopt evaluator’s time-share recommendation not an abuse of discretion; Osgood v. Landon (2005) 127 CA4th 425, 436, 25 CR3d 379, 386—not error to award custody to relocating Mother even though evaluator recommended custody to nonmoving Father; see also Fam.C. §3044(e)—court finding that party has perpetrated domestic violence for purposes of §3044 presumption (¶7:329 ff.) cannot be based solely on evaluator’s conclusions of Family Court Services staff recommendation]”
The Rutter Group California Practice Guide Family Law 7:255
As indicated above, under the correct circumstances, the evaluation can be evidence.
“(2) [7:255] Use in evidence: The report may be ‘considered’ by the court. But it is admissible evidence only on stipulation of ‘all interested parties’ (in which event, it is ‘competent’ evidence on all matters contained therein). [Fam.C. §3111(c)]”
The Rutter Group California Practice Guide Family Law 7:255
The general statement that the report ‘may be considered’ in subsection Family Code §3111(a) is legally subject to it being admitted into evidence in whole or part by stipulation (Family Code §3111(c)), although the report may also be used to frame examination of the custody evaluator or other competent witness. There has been no stipulation to admit the report as evidence in lieu of examination of the custody evaluator.
“(a) [7:256.1] Parties’ right of cross-examination: Absent an effect waiver (below), the court may not act on the evaluation report and recommendations unless the parties are give the opportunity to cross-examine the evaluator. [Fewel v. Fewel (1943) 23 C2d 431, 436, 144 P2d 592, 595]
Statewide procedural standards for cross-examination of the custody evaluator cannot limit the requirement that the evaluator be available for corss-examination; and must also provide for written notice to the parties of their right to cross-examine the evaluator after a reasonable time to review the evaluation report. [Fam.C. §3117(b)]
1) [7:256.2] No advance waiver: The parties’ right to cross-examine the evaluator cannot be waived, expressedly or impliedly, in advance: ‘No statement, whether written or oral, or conduct shall be held to constitute a waiver by a party of the right to cross-examine the court-appointed investigator, unless the statement is made, or the conduct occurs, after the report has been received by a party or his or her attorney.’ [Fam.C. §3115 (emphasis added {in treatise})]
Comment: Section 3115 effectively supersedes early case law and local court practices under which a court-ordered custody evaluation could be conditioned on parties’ waiving cross-examination of the evaluator; no advance waiver will be enforceable even if part of a stipulation appointing a custody evaluator. [Fam.C. §3115]”
During trial your legal representative can use the raw science to persuade the court to decide on a custody and visitation schedule that is best for your children, even if it differs from the recommendation of the custody evaluator.
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