Q. My ex wife and I are fighting over custody of our three children. The
judge decided to appoint a psychologist to interview us all. How does
this affect me and my case?
What Are 730 Evaluations?
In high conflict cases where two sides have entrenched and opposing views
about what is in the best interests of their children in terms of custody
California Evidence Code section 730 provides judges the option of appointing an expert witness to investigate
the matter and report to the Court. This is often referred to as a forensic
evaluationbut in California we typically call them "730 evaluations."
What this means for you is that your family is likely in trouble, since
these custody "evals" only are necessary where parents are failing
to pro-actively resolve their parenting issues. They can be quite expensive
in every way. I describe the process here in part to help encourage you
avoid it. Still, there are times when it can lead to a lessening of conflict
and it may be inevitable in move away situations.
Forensic evaluations can be used in a number of other settings as well,
including valuing businesses or real estate. It is extremely common in
move away cases and in fact a strong argument can be made that to allow a parent to relocate
with minor children in the absence of such a report (if it is requested)
violates the due process rights of the non-moving parent [In re Marriage
of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr. 2d 182].
In your situation the Court has likely appointed a Psychologist or Marriage
and Family Therapist whose work is already known to the Court because
that person is on a panel the Court uses, or possibly because one or both
lawyers have worked with the expert and either recommended him or her
to the Court. Often the parties' lawyers will agree upon this third person.
Reliable evaluators are not hired guns for either side. However, like
everyone else they can have their own biases. To the extent that you can,
it is always a good idea to get as much information as possible about
a potential evaluator before a selection is made. Courts generally don't
impose someone on the parties where one of them objects to that person,
but in smaller communities there may be fewer options in terms of qualified
It can be very difficult for a judge to determine the truth of claims between
family law litigants, what their underlying motives are, whether there
is some mental health or substance abuse undercurrent, and whether one
parent is more likely than the other to foster an ongoing relationship
between the other parent and their children. Courts don't have the
time or resources to do much more than call balls and strikes based upon
witness declarations or live testimony. Therapists and psychologists are
able to spend time interviewing parents and sometimes have them complete
psychological testing, they meet children, talk to teachers, visit homes,
check with therapists who are seeing family members, and also interview
significant others, new spouses, and other children in blended families.
A much more reliable picture may emerge than that which comes from the
parties' own descriptions of things.
These custody evaluations can be quite expensive, typically starting at
about $2,500. They seem to average between $4,000 and $6,000, but the
costs skyrocket with the number of people other than the parents themselves
(often called 'collaterals') whose input is required.
It typically takes at least three months for an expert psychologist or
MFT to complete all the necessary interviews and write a detailed report.
In my experience the time frame is closer to four months. This report
is then submitted to the attorneys and to the Court.
Most courts require this report to be submitted at least 10 days prior
to a hearing, so that both sides have ample time to review it. If you
are involved in a custody dispute and you or your attorney receive the
report late, if you disagree with its recommendations you may want to
object that you have not had sufficient time if you want a continuance;
otherwise, the Court may adopt the recommendations at that hearing.
In almost all cases where a 730 report has been completed, either side
may request that an evidentiary hearing take place with live testimony
and the ability to examine and cross-examine witnesses - including the
custody evaluator whose recommendations are being considered. Depending
upon the urgency of the family's issues and the Court's availability,
these hearings may not be set for weeks or months.
What If I Disagree With the Evaluator's Report?
In addition, if you feel that the evaluator failed to adequately investigate
the case, or did not meet the standards of practice for such evaluations,
you may want to consider hiring your own
Evidence Code § 733 expert to advise you or your attorney on how to point out the shortcomings
to the Court. This can be an expensive way to challenge findings that
you do not agree with. The usefulness of 733 evaluators is limited because
they do not get to perform a second evaluation (and rarely meet with the
other party), and without conducting full interviews with all relevant
persons they may be ethically bound not to render an opinion. Certainly
their views won't carry the same weight with a judge as the full evaluator.
Contested custody cases will damage your children, guaranteed. I urge you to consider mediating your custody differences instead, either
by using a qualified mediator or a mental health professional.
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T.W. Arnold III