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However, there is much skepticism and growing criticism, concerns, and/or controversy in regards to the validity, accuracy, and/or quality of these evaluations and how they are conducted and the qualifications of those who are conducting them ("evaluators").
Let us educate ourselves on custody evaluations or 730 evaluations and also understand the controversies surrounding them and what one can do to prepare.
What is a 730 Evaluation?
In California, a child custody evaluation or "730 Evaluation", can be described as an in-depth study and investigation of the "family, it's members, and/or prospective members" and their relationship with the children. The evaluation is carried out by an "evaluator" with the intent of helping the court determine what custody, visitation, and/or parenting arrangement would be in the "best interest of the children."
The evaluation usually takes place over a period of time set out by the judge or evaluator (sometimes weeks and sometimes months) and includes a recommendation for what would be "in the best interests of the children" , which the court is inclined to adopt. The evaluator can be called into court to testify or be cross examined. The evaluator will then have to answer questions and explain to the judge the recommendations and sometimes will be ordered to conduct a further study into the matter.
In some counties, a " fast track evaluation ", also known as a "partial evaluation" or "mini-evaluation", can be ordered. It is referred to as a "fast track evaluation", "partial evaluation", or "mini evaluation" because it is less extensive than the typical evaluation. This may be requested to speed up things, or when the scope of the evaluation can be reduced such as when the court wants to know the answer to a particular question. It is essential to determine if a "mini-evaluation" is right for your situation because if there are any issues that are significant to your case that requires a more in-depth look or study, it would be highly unlikely this would surface or enough compelling evidence will be even examined in such a short period of time.
Under obligation to the court, at the end of the evaluation, the evaluator will submit their findings and recommendations to the judge prior to the hearing. In a full evaluation this is generally in the form of a written report and with a fast track evaluation this is often in the form of an oral report.
In legal terms, California Evidence Code Section §730 states:
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. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court. Nothing in this section shall be construed to permit a person to perform any act for which a license is required unless the person holds the appropriate license to lawfully perform that act.
Rule 5.220. Court-ordered child custody evaluations
This rule of court is adopted under Family Code sections 211 and 3117.
(Subd (a) amended effective January 1, 2007.)
Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. This rule governs both court-connected and private child custody evaluators appointed under Family Code section 3111, Evidence Code section 730, or Code of Civil Procedure section 2032.
(Subd (b) amended effective January 1, 2003.)
For purposes of this rule:
(1)A “child custody evaluator” is a court-appointed investigator as defined in Family Code section 3110.
(2)The “best interest of the child” is as defined in Family Code section 3011.
(3)A “child custody evaluation” is an expert investigation and analysis of the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues.
(4)A “full evaluation, investigation, or assessment” is a comprehensive examination of the health, safety, welfare, and best interest of the child.
(5)A “partial evaluation, investigation, or assessment” is an examination of the health, safety, welfare, and best interest of the child that is limited by court order in either time or scope.
(6)“Evaluation,” “investigation,” and “assessment” are synonymous.
(Subd (c) amended effective January 1, 2003.)
(d) Responsibility for evaluation services
(1)Each court must:
(A)Adopt a local rule by January 1, 2000, to:
(i)Implement this rule of court;
(ii)Determine whether a peremptory challenge to a court-appointed evaluator is allowed and when the challenge must be exercised. The rules must specify whether a family court services staff member, other county employee, a mental health professional, or all of them may be challenged;
(iii)Allow evaluators to petition the court to withdraw from a case;
(iv)Provide for acceptance of and response to complaints about an evaluator’s performance; and
(v)Address ex parte communications.
(B)Give the evaluator, before the evaluation begins, a copy of the court order that specifies:
(i)The appointment of the evaluator under Evidence Code section 730, Family Code section 3110, or Code of Civil Procedure 2032; and
(ii)The purpose and scope of the evaluation.
(C)Require child custody evaluators to adhere to the requirements of this rule.
(D)Determine and allocate between the parties any fees or costs of the evaluation.
(2)The child custody evaluator must:
(A)Consider the health, safety, welfare, and best interest of the child within the scope and purpose of the evaluation as defined by the court order;
(B)Strive to minimize the potential for psychological trauma to children during the evaluation process; and
(C)Include in the initial meeting with each child an age-appropriate explanation of the evaluation process, including limitations on the confidentiality of the process.
(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2003.)
(e) Scope of evaluations
All evaluations must include:
(1)A written explanation of the process that clearly describes the:
(A)Purpose of the evaluation;
(B)Procedures used and the time required to gather and assess information and, if psychological tests will be used, the role of the results in confirming or questioning other information or previous conclusions;
(C)Scope and distribution of the evaluation report;
(D)Limitations on the confidentiality of the process; and
(E)Cost and payment responsibility for the evaluation.
(2)Data collection and analysis that are consistent with the requirements of Family Code section 3118; that allow the evaluator to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child’s developmental needs; the quality of attachment to each parent and that parent’s social environment; and reactions to the separation, divorce, or parental conflict. This process may include:
(A)Reviewing pertinent documents related to custody, including local police records;
(B)Observing parent-child interaction (unless contraindicated to protect the best interest of the child);
(C)Interviewing parents conjointly, individually, or both conjointly and individually (unless contraindicated in cases involving domestic violence), to assess:
(i)Capacity for setting age-appropriate limits and for understanding and responding to the child’s needs;
(ii)History of involvement in caring for the child;
(iii)Methods for working toward resolution of the child custody conflict;
(iv)History of child abuse, domestic violence, substance abuse, and psychiatric illness; and
(v)Psychological and social functioning;
(D)Conducting age-appropriate interviews and observation with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child;
(E)Collecting relevant corroborating information or documents as permitted by law; and
(F)Consulting with other experts to develop information that is beyond the evaluator’s scope of practice or area of expertise.
(3)A written or oral presentation of findings that is consistent with Family Code section 3111, Family Code section 3118, or Evidence Code section 730. In any presentation of findings, the evaluator must:
(A)Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached;
(B)Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews;
(C)Only make a custody or visitation recommendation for a party who has been evaluated. This requirement does not preclude the evaluator from making an interim recommendation that is in the best interest of the child; and
(D)Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interest of the child if making any recommendations to the court regarding a parenting plan.
(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2003, and July 1, 2003.)
(f) Cooperation with professionals in another jurisdiction
When one party resides in another jurisdiction, the custody evaluator may rely on another qualified neutral professional for assistance in gathering information. In order to ensure a thorough and comparably reliable out-of-jurisdiction evaluation, the evaluator must:
(1)Make a written request that includes, as appropriate:
(A)A copy of all relevant court orders;
(B)An outline of issues to be explored;
(C)A list of the individuals who must or may be contacted;
(D)A description of the necessary structure and setting for interviews;
(E)A statement as to whether a home visit is required;
(F)A request for relevant documents such as police records, school reports, or other document review; and
(G)A request that a written report be returned only to the evaluator and that no copies of the report be distributed to parties or attorneys;
(2)Provide instructions that limit the out-of-jurisdiction report to factual matters and behavioral observations rather than recommendations regarding the overall custody plan; and
(3)Attach and discuss the report provided by the professional in another jurisdiction in the evaluator’s final report.
(Subd (f) amended effective January 1, 2003.)
(g) Requirements for evaluator qualifications, training, continuing education, and experience
All child custody evaluators must meet the qualifications, training, and continuing education requirements specified in Family Code sections 1815, 1816, and 3111, and rules 5.225 and 5.230.
(Subd (g) amended effective January 1, 2004; previously amended effective July 1, 1999, and January 1, 2003.)
In performing an evaluation, the child custody evaluator must:
(1)Maintain objectivity, provide and gather balanced information for both parties, and control for bias;
(2)Protect the confidentiality of the parties and children in collateral contacts and not release information about the case to any individual except as authorized by the court or statute;
(3)Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;
(4)Consider the health, safety, welfare, and best interest of the child in all phases of the process, including interviews with parents, extended family members, counsel for the child, and other interested parties or collateral contacts;
(5)Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist;
(6)Operate within the limits of the evaluator’s training and experience and disclose any limitations or bias that would affect the evaluator’s ability to conduct the evaluation;
(7)Not pressure children to state a custodial preference;
(8)Inform the parties of the evaluator’s reporting requirements, including, but not limited to, suspected child abuse and neglect and threats to harm one’s self or another person;
(9)Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;
(10)Disclose to the court, parties, attorney for a party, and attorney for the child conflicts of interest or dual relationships; and not accept any appointment except by court order or the parties’ stipulation; and
(11)Be sensitive to the socioeconomic status, gender, race, ethnicity, cultural values, religion, family structures, and developmental characteristics of the parties.
(Subd (h) amended effective January 1, 2007; previously amended effective January 1, 2003.)
(i) Service of the evaluation report
A Notice Regarding Confidentiality of Child Custody Evaluation Report (form FL-328) must be attached as the first page of the child custody evaluation report when a court-ordered child custody evaluation report is filed with the clerk of the court and served on the parties or their attorneys, and any counsel appointed for the child, to inform them of the confidential nature of the report and the potential consequences for the unwarranted disclosure of the report.
(Subd (i) adopted effective January 1, 2010.)
(j) Cost-effective procedures for cross-examination of evaluators
Each local court must develop procedures for expeditious and cost-effective cross-examination of evaluators, including, but not limited to, consideration of the following:
(3)Audio or video examination; and
(4)Scheduling of appearances.
(Subd (j) relettered effective January 1, 2010; adopted as subd (i); previously amended effective January 1, 2003.)
Rule 5.220 amended effective January 1, 2010; adopted as rule 1257.3 effective January 1, 1999; previously amended and renumbered effective January 1, 2003; previously amended effective July 1, 1999, July 1, 2003, January 1, 2004, and January 1, 2007.
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