Bias in Custody Evaluations

Posted on 11/06/12 Child Custody,Divorce

When a Child Custody Evaluator Proves to Maintain a Bias, He or She Must be Removed and any Orders Therefrom Must be Vacated

In the recent matter of  Irmo Adams & A. (2012) (CA 4/3 – Opinion filed October 16, 2012), a 2008 stipulated divorce judgment provides for shared legal custody of the parties’ son and puts a scheduled parenting plan in place. The judgment requires the parents to submit disputes about issues involving their “high-functioning” autistic son to special master who is required to measure up to specific qualifications (a special master is a court-appointed attorney to provide the court with a report about a specific issue).

In 2010, an unresolvable dispute arose about the middle school their son should attend. Father invoked the special master provisions to resolve the problem but Mother refused and unilaterally notified the district she preferred that their son would be enrolled there. Mother followed this with a motion (now called a Request for Order, or RFO) that seeks sole legal custody and asks for the appointment of a custody evaluator (FC § 730) to determine whether father “is capable of being an effective parent without supervision.” She cited a variety of complaints about father’s parenting.

Father filed an RFO seeking the appointment of a special master pursuant to the judgment. Father claimed Mother had turned their son’s disability “into a cottage industry.”  He said she maintained a staff of support personnel to assist her with their son and said she spent her time searching for alternative, unproven, ineffective treatment methodologies for autism and expected him to follow her lead.

The parties stipulated that David Jimenez would complete a full psychological examination of them and their son (per Evidence Code 730) and serve as a special master.  Jimenez’s investigation, however, did not proceed smoothly. Jimenez’s services went far beyond the proper limits of a 730 custody evaluation as he became more and more involved in parenting decisions and became a harsh and sometimes obnoxious critic of Father.  Father filed a motion to remove Jiminez.

At the hearing, the trial court agreed with father that Jimenez “went well outside the perimeter of a 730 evaluation and has become essentially sort of a special master here, making decisions, directing the parties to take certain actions and conduct, without their consent for him to engage in that role.” The court said it was surprised to see the things that Jimenez had done when his task was to complete a neutral and objective child custody evaluation. “Frankly, I don’t know where he got off purporting to tell [father] whether he could take his son on a boating trip or not. … [W]hen he does things like demand a safety plan for [father’s] knife collection, shows up at his home and demands inspection, he is really outside the scope of a [section] 730 evaluation. If nothing else, he has lost his objectivity and he is no longer evaluating.”

Despite these observations, the court did not remove Jiminez and awarded Mother sole legal custody.  The Court of Appeals reversed, citing Evidence Code § 730, which authorizes a court to “appoint a disinterested expert who serves the purpose of providing the court with an impartial report.” In the area of child custody, evaluations are to obtain a neutral mental health professional’s assessment of the family, each parent’s capacity to parent, and the children’s needs and capabilities.  Further, the California Rules of Court require custody evaluators to maintain no bias.

The Court of Appeals also said that the trial court failed to order payment of “reasonable” fees for the evaluator.

If you have a child custody matter it is essential to have an experienced San Diego child custody attorney on your side.  Our attorneys are available to speak with you today.