WHAT THESE CASES MEAN TO YOU
Third in a series of case reviews by Russell H. Thaw
When child custody disputes arise, the Court may appoint a Child Custody Evaluator to assist in determining a child’s best interest. The Evaluator’s task is to provide an objective opinion of the best custody solution utilizing facts gathered during the course of the evaluation. The Evaluator’s report is then submitted to the Court and, while it is not the only factor considered by the Court when making custody orders, it is given great weight. California Rules of Court 5.220 outlines the rules governing the evaluation process, rules which must be adhered to during the course of the evaluation. If the rules are not obeyed, it could be grounds for the Evaluator’s removal.
We review two cases wherein one party attempted to remove the Child Custody Evaluator under California Rules of Court 5.220.
The first is Winternitz v. Winternitz (2015) , Cal.App.4th [No. D065131. Fourth Dist., Div. One. Feb. 27, 2015.] Mother, Appellant, v. Father, Respondent.
Mother requested to move away with her daughter (D) who, at the time, lived with her Father, Mother’s ex-husband. The Court appointed a Child Custody Evaluator to determine if custody to Mother with a subsequent move away would be in the child’s best interest (note D wanted to live with Mother). The Evaluator’s report recommended the child remain with Father and that Mother’s move away with D be denied. The Court’s eventual decision mirrored the custody evaluation report. Mother appealed the denial of her move away alleging the Trial Court applied an incorrect legal standard in assessing her relocation request, and at the same time appealed the Trial Court’s refusal to strike the Custody Evaluator’s report. She asserted the Custody Evaluator failed to comply with California Rules of Court rule 5.220, e.g., failed to disclose information provided directly by the Father, failed to respond to discovery requests and further alleged the Evaluator was biased against Mother.
THE APPELLATE COURT RULED:
The initial judgment was affirmed because:
1. Mother failed to show an abuse of discretion by the Family Court in failing to strike the custody evaluation or by refusing to remove the Evaluator;
2. While acknowledging the change in custody posed challenges to both parents, nonetheless the Appellate Court said the Trial Court was correct in relying upon the parents to support its order to do everything possible not to overly stress D. The Appellate Court underscored its inability to re-weigh evidence heard by the Trial Court.
Compare the above to the case of Leslie O (Mother), Petitioner, v. The Superior Court of Los Angeles County, Respondent; Thomas O., (Father) Real Party in Interest.
Mother’s attorneys cited a number of comments made by the Evaluator in her report, including 78 references to Mother’s “mental status, problems and issues” and the claim that Mother, a nurse, might have “Munchausen by Proxy Syndrome” based on the amount of medical information about the child she conveyed to the Evaluator, although the Evaluator said she was repeating a comment made by another professional and not making such finding on her own.
Several other events were cited as well, including:
• A communication to the Mother’s therapist, who asked that “implications of severe mental illness” be removed from the report because there was no such illness and the Mother was functioning normally outside the custody fight.
• Complaints from other professionals, including the child’s pediatrician and a physician.
• The submission of a “revised” evaluation clarifying the source of the Munchausen’s claim, contrary to the Evaluator’s previous statement the evaluation could not be changed.
• Complaints that Mother had shared the report with physicians, contrary to what the evaluator took to be the confidential nature of the report.
• “Cozy little emails,” as Mother’s counsel characterized them, in which Father thanked the Evaluator for her work. An example: The Evaluator offered solace to Father, suggesting delays meant his attorneys might not be acting in his best interests and that perhaps he should change counsel.
The Trial judge pronounced the case “close” but said Mother had not made a showing of bias sufficient to require the Evaluator’s removal from the case, or to strike her report(s). The Mother appealed the Trial Court’s decision and the Appellate Court agreed, stating that while “to endorse appellate micro management of every communication or act by the Evaluator would make it impossible for Evaluators to perform their functions”, the Court must step in when the facts warrant. The Evaluator’s actions, in particular her willingness to make changes in her initial report that presented the Father in a more favorable light, while ignoring information favorable to the Mother, and her exchange of emails with the Father discussing matters beyond the scope of the evaluation, such as his choice of counsel, established bias. The Court of Appeal ordered the Child Custody Evaluator removed from the case after stating she showed persistent bias in favor of the Father. The Appellate Court found the Trial Court “erred in failing to remove the Custody Evaluator for bias against Mother, and to strike her evaluation …”
WHAT THIS CASE MEANS TO YOU:
The bottom line for parents, attorneys and evaluators is: Read California Rules of Court 5.220 and adhere to its tenants. Keep in mind that ministerial oversights by evaluators will not warrant their removal, but outright bias will. Evaluators, attorneys and parents should read again In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 43 Cal.Rptr.3d 575, and its memorable quote relating to custody evaluations “California Rules of Court 5.220 & 5.235 . . [P]rohibits, absent stipulation, ex parte communications between attorneys for any party, including court-appointed minor’s counsel, and any court-appointed evaluator, except for scheduling of appointments (as provided in subdivision (b) of Fam. Code, §216, subds. (a) & (b)). We expect these prohibitions against ex parte communications with court-appointed evaluators to be obeyed.” (Emp. added).