child custody cases, California courts decide what custody arrangement the parties must
comply with upon
divorce. Under California law, courts are required to make custody determinations
based on the
child’s best interest.
Generally, evaluation of the child’s best interests in proceedings
regarding the custody and care of a minor child requires courts to make
an inherently personal judgment based on the specific circumstances of
However, courts are generally not in an ideal position to shape the future
family relationships for a child, as an assessment of the child’s
best interests requires an in-depth look into the family dynamics of the
parties and evaluate factors related to the child’s psychological
and emotional wellbeing. People spend years studying child psychology,
and judges can hardly be expected to be familiar with the latest discoveries
and concepts in that field of study.
To assist with these determinations, courts often appoint experts in the
area of child psychology, family therapy, and social work—known as
custody evaluators—if doing so would be in the child’s best interest.
The Role of the Custody Evaluator
The court’s authority to appoint a custody evaluator to make recommendations
for the court is based on California Evidence Code § 730, which provides
that “When it appears to the court, at any time before or during
the trial of an action, that expert evidence is or may be required by
the court or by any party to the action, the court on its own motion or
on motion of any party may appoint one or more experts to investigate,
to render a report as may be ordered by the court, and to testify as an
expert at the trial of the action relative to the fact or matter as to
which the expert evidence is or may be required.”
Specifically, California Family Code § 3111 authorizes the appointment
of custody evaluators: “In any contested proceeding involving child
custody or visitation rights, the court may appoint a child custody evaluator
to conduct a child custody evaluation in cases where the court determines
it is in the best interests of the child.”
A court-appointed custody evaluator is an extension of the court’s
judicial authority. As such, custody evaluators inhabit a similar role
to the judge as a neutral third-party fact-finder in custody disputes
between parents or other parties. The custody evaluator typically issues
a confidential report and recommendation to the court regarding what custodial
arrangement serves the child’s best interests.
As an extension of the court’s authority, custody evaluators are
protected by quasi-judicial immunity. As a result, custody evaluators
are immune from legal action for matters involving the performance of
their court-appointed duties.
Challenging the Custody Evaluator’s Recommendations
Under California law, a person must meet certain requirements to qualify
as a court-appointed custody evaluator. In general, custody evaluators
are highly trained and educated professionals who possess a minimum level
of work, research, or clinical experience. The qualifications of a custody
evaluator are outlined in the California Rules of Court, Rule 5.220. Furthermore,
custody evaluators must have completed the domestic violence and child
abuse training program prescribed under California law.
Although a custody evaluator can be challenged based on their qualifications,
their failure to adhere to the provisions of Rule 5.220 does not necessarily
imply that the evaluator should be removed or that their report should
be excluded at trial. Instead, the court will consider defects in the
evaluator’s qualifications as affecting the weight of their findings,
not the overall admissibility of their report.
In the majority of custody cases, the court has an interest in restricting
the use of an expert custody evaluator to the court-appointed evaluator.
This helps prevent a situation where the court must weigh competing expert
claims regarding highly sophisticated scientific concepts.
However, if allowed, the legal authority for a competing evaluator expert
hired by the parties can be found in California Evidence Code § 733,
which states “Nothing contained in this article shall be deemed
or construed to prevent any party to any action from producing other expert
evidence on the same fact or matter mentioned in Section 730; but, where
other expert witnesses are called by a party to the action, their fees
shall be paid by the party calling them, and only ordinary witness fees
shall be taxed as costs in the action.”
In extreme cases, a custody evaluator can be challenged based on bias.
As agents of the court, custody evaluators must act as impartial third-party
investigators. Either party can file a motion to disqualify an evaluator
and strike their recommendations from the record.
Courts must carefully consider allegations of evaluator bias because relying
on the findings of a biased evaluator is regarded as an abuse of judicial
discretion and is grounds for reversing the court’s judgment on appeal.
Ask an Experienced Attorney from Hanson, Gorian, Bradford & Hanich
Child custody proceedings can be stressful and intense, given the stakes
involved. If you are concerned about legal issues regarding a child custody
dispute, you should consult the professional legal counsel of an experienced
family law attorney from Hanson, Gorian, Bradford & Hanich.
For an initial consultation about your case, call us at (951) 506-6654 or
contact our office online today.