California Family Law Attorney
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December 12, 2010
  ELLEN KELLNER'S CO-PARENTING BOOK Inspired Me: How Can I Get My Ex Into Counseling?
Posted By Thurman Arnold

Q. I found Ellen Kellner's book "The Pro Child Way, Parenting With An Ex" on your website some weeks ago, and ordered it from I have been eagerly reading it, especially because of the up-coming holidays. I am wondering if you can tell me, is there any way in California to force my ex-husband to do some child-centered counseling with me? I think we could start talking better if we were in a safe environment.

Rebecca in San Dimas

A. Rebecca, I am so pleased that you are taking the time to read Ellen's book! She is a dear friend of mind, and a tireless proponent of co-parenting techniques for the sake of children. I have copies of her book which I give away to my clients, since finding resources for dealing with divorce and parenting issues is crucial to moving on. (I recently had a concerned grandmother waiting for me to finish my work with her son, and I noticed the book seemed stuck to her hand!)

California Family Code section 3190 authorizes Family Courts to require parents (or any other party) who are involved in a custody or visitation dispute to participant in outpatient counseling for up to a year.

Unfortunately, the court needs to first make findings that the dispute "poses a substantial danger to the best interests of the child" and that counseling is in the best interests of the child. It is quite ironic that in order to get counseling the dispute must reach such a magnitude of dysfunction. Custody proceedings must be pending, but even if they aren't it should be sufficient to just file a motion or OSC, allege facts that meet section 3190's requirements, and request the orders. In cases involving a history of domestic violence or abuse, this counseling can be ordered separately per FC section 3192.

I am so pleased for you and your children that you are motivated enough to investigate these options. They are well-served.

BTW, Ellen is available for phone and possibly Skype based consults if you think it might be helpful to meet with her for further ideas and direction.

Happy holidays to you and your family!

~ T.W. Arnold, CFLS ~

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May 10, 2010
  What does it mean that a judge has ordered a 730 EVALUATION in my custody case?
Posted By Thurman Arnold

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 and visitation, 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 evaluators.

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.

Want more information about custody 730 evaluations? Visit us here!

And toss us a FB Like if you appreciate our efforts!

T.W. Arnold III

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