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Can I REMOVE and Replace an EC Section 730 Custody Evaluator for BIAS?

Q. I have been ordered into a "730 Evaluation" with a Marriage and Family Therapist. My former wife and I are battling over custody. For a number of reasons (including the evaluator's behaviors like interrupting me, raising her eyebrows, smirking and rolling her eyes, showing up at my house unannounced several times, and arguing), I fear this person is strongly biased in favor of my ex-wife. The evaluator has not yet submitted her report.

I want to replace her. My attorney says that it is too late because I originally agreed to her. What do you think?

Wayne T., Walnut Creek, CA


Wayne - as is often the case when I answer emails from people who find my website, I need more information to be able to give you suggestions about your particular circumstances. I am available for second opinion family law consults at $350/hour. These consults, whether by Skype or phone, may offer you important benefits (like discreetness so that your present attorney doesn't get panicked or cranky, fresh objectivity, and sharing with you a certain practical expertise). Here is a link to my Second Opinion's information page if this is of interest.

In any event, an October 16, 2012 appellate decision may be of value to you, and others. The case will be discussed in every mental health professional ethics course in California for years to come, and is a great template for what custody evaluators should not do. This is In Re Marriage of Adams (2012) 209 Cal.App.4th 1543. Because I believe the case is extremely important for custody evaluators and custody litigants, I've uploaded it and your can read the decision by clicking the case name, above. The first twenty-four pages of this 36 page decision are devoted to outlining the conduct of the expert involved, David J. Jimenez, Ph.D., who has been a California psychologist licensed since 1988. Before reading the appellate decision, I'd never heard of him - I have no agenda involving Dr. Jimenez, but I am amazed at what a bully he seems to have been. The father has evidently initiated a complaint resulting in an as yet unresolved disciplinary proceeding filed by the Board of Psychology, Department of Consumer Affairs.

It is highly unlikely that Dr. Jimenez will receive any of the remaining portion of the $42,000 he billed the parents on this case, only a portion of which he was ever paid - since on remand the trial court is directed to determine the reasonableness of those fees. Essentially his custody report was thrown out because of his demonstrated bias in favor of the mother, but not before the father in this case spent thousands of dollars in legal fees properly challenging Dr. Jimenez. Interestingly, the mother whom Dr. Jimenez so clearly favored filed no opposition to father's appellate brief.

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"730 Evaluations" and the Critical Importance of Maintaining Professional Integrity

It is common in custody disputes for one or both parties to believe that a mental health professional (MHP) can help determine parenting plans that are in children's best interests for litigants enmeshed in parenting disputes. Since each parent believes that their points of view are the correct ones, they tend to assume that the evaluator will issue the recommendations that the parent wants. This complicates the evaluator's assignment, since he or she is often being "lobbied" hard by each side.

Judges have the authority, on their own motion, to appoint such experts, and this often occurs in high conflict cases. Local evaluators are usually on an approved panel list, and over time these regulars become known to the judges who come to trust their objectivity, or not. Often the parties or their attorneys stipulate to an expert on the panel to serve as the parents' custody evaluator.

Lawyers, judges, and MHPs often refer to these as "730 custody eval's". Much weight can be given to them by over-worked judges, and an unfavorable evaluation can have dramatic repercussions for those affected. Some judges may defer to these experts because, after all, they've likely invested dozens of hours in interviewing the parents, children, and others who may never be called to testify. This can be dangerous, since judges generally are pretty good at evaluating credibility, but the credibility of these witnesses is instead determined by the expert. Given over-crowded courtrooms, It's essential to the efficient administration of justice that judges be able rely upon the neutrality of these professionals. Sometimes this trust isn't warranted, but it takes eggregious misconduct and a stubborn litigant or attorney to expose the deficiencies in the evaluator's report.

730 custody evals are authorized by Evidence Code section 730. Family Code section 3111 addresses a similar mechanism for obtaining focused investigations for often high conflict custody battles.

As observed in In re Marriage of Adams (2012) 209 Cal.App.4th 1543, at __:

"Over a century ago, our Supreme Court recognized the need for court-appointed 'disinterested . . . experts who shall review the whole situation and then give their opinion with their reasons . . . regardless of the consequences to either litigant.' [Citation omitted]. Section 730 serves this function by authorizing a court to 'appoint a disinterested expert who serves the purpose of providing the court with an impartial report.' [Citation omitted]. 'The job of third parties such as . . . evaluators involves impartiality and neutrality, as does that of a judge, commissioner or referee ....' [Citation omitted]. In the area of child custody, judges 'order evaluations 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.' [Citation omitted]."

Accordingly, these professionals who make sometimes handsome livings reporting to courts as reliable witnesses have a daunting amount of power and presumed credibility, and they like every other human may abuse that power, and save - or possibly ruin - lives. A reading of the decision in this case leaves the reader with the impression that this evaluator lost his way.

The California Judicial Council has established rules governing how 730 child custody evaluations are to be conducted in Cal. Rules of Court, Rule 5-220.

If you are dissatisifed with your evaluator, read the rule. I do want to say that it would be a mistake to conclude that the sorts of abuses of power as occurred in Adams are common. But clearly they occur.

It should be obvious that family law bench officers are hugely challenged in terms of the time they have to invest in ferreting out the truth in any given case, and that they aren't usually formally trained as family scientists. Custody battles almost always include "he said, she said" situations, and often a lot more - including all forms of emotional pathology. Courts of necessity often must rely upon these professionals to conduct investigations and to supply information, and to render opinions, that do in fact often aid positive decision-making. Yet, in order for the system to work, it is essential that those professionals who hold themselves out as experts to maintain complete neutrality and personal and professional integrity. Failing to meet those responsibilities not only abuses the parties and, potentially, children, it abuses the system. It undermines our confidence that our government sponsored justice system works.

For MHPs who make a living rendering opinions that they expect that courts will act upon - with lifelong and life changing consequences, and particularly within high conflict custody cases, a "God complex" becomes a seductive and oft times an unrecognized danger. We now have an extremely well considered appellate decision on the subject. I'll flesh my analysis of this important case further, in time.

T.W. Arnold

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