IN RE MARRIAGE OF ADAMS FAMILY LAW APPEAL

Impact of a 730 custody evaluator’s alleged bias

In Re Marriage of Adams Family Law Appeal – Impact of a 730 Custody Evaluator’s Alleged Bias

This case is about the Orange County family law appeal case entitled In re Marriage of Adams. We hope you enjoy it.

In October 2012, the Fourth Appellate District of Court of Appeal (the appellate district that hears Orange County appeals) came down with a very interesting opinion dealing with the conduct of a 730 evaluator and forensic psychologist.

For those who may not be familiar with the concept of a 730 evaluator, here is some background information. 730 evaluators are intended to be independent and disinterested evaluators who are appointed by courts pursuant to California Evidence Code section 730. A 730 evaluator’s job is to essentially provide courts with an impartial report regarding any issue for which they are appointed. A common scenario for appointment of a 730 evaluator is child custody. We have previously written about the subject of 730 evaluation in Orange County child custody cases. Read the article we have linked for more.

Now, let’s get to the Orange County family law appellate case of In re Marriage of Adams.

As you may have predicted, the dispute in this case was over the parties’ son, J. (appellate cases often only refer to children’s names by their initials), who at a young age was diagnosed with Asperger’s Syndrome (a form of high functioning autism.)

The mother has published a book on autism, gives lectures on the topic and helped families with autistic children to obtain various services.

The father was a special education attorney who had a master degree in psychology. The parties divorced in 2008 and then they agreed, in writing, to submit all future disputes regarding J. to a special master.

Everything was going smoothly until 2010 when J. was ready to start middle school. The parents could not agree on the middle school for J. as the father lived in Newport-Mesa Unified School District (NMUSD) and mother lived in Laguna Beach and wanted to transfer J., to Laguna Beach Unified School District (LBUSD.) Because the parties could not come to an agreement, in May 2010, the mother filed an order to show cause (OSC) asking for J.’s sole legal custody. She also asked for a 730 evaluation to determine whether the father was capable of being an effective parent without supervision. She also asked the court to modify the judgment and essentially do away with the “special master” requirement.

Father filed his own OSC for the appointment of the special master. In July 2010, the parties entered into a stipulation that:

1. they would submit to a full psychological evaluation by David J. Jimenez, for purposes of child custody;

2. Jimenez’s report would be admitted into evidence subject to cross-examination at the custody hearing and

3. the parties would share Jimenez’s fees equally.

Not long after, in December 2010, father moved for the stay of the 730 evaluation and removal of Jimenez as the evaluator. Father claimed Jimenez acted outside of his scope and showed bias in favor of the mother as the reasons for his request. Father referred to the following as some examples of Jimenez’s alleged transgression (according to father). Please read the actual decision linked at the beginning of the article for additional details.

1. Father’s Boat: Father had previously told Jimenez that he enjoyed boating with J. Father had recently bought a boat and was planning to boat to Catalina Island when the weather permitted. Father had extensive experience boating, had taken at least 30 trips to Catalina and had taken J. to Catalina before, without any incident.

Father claimed that without investigating the issue, talking to the father or inquiring about his boating experience or considering the weather condition, at the concern of the mother, Jimenez allegedly sent a letter to father “strongly discouraging” him from taking J. on any such trip. In response, father complied and did not take J. to Catalina.

2. Father’s knife collection: One late afternoon in November 2010, Jimenez called the father and told him that he was parked in front of his house and wanted to, among other things, inspect the father’s knife collection. Father complied and drove to his home to allow the inspection to take place. Father had a plastic container with different kinds of knives which he had collected over the years. Father offered to get rid of the collection if Jimenez deemed it necessary. Jimenez said the knives were not a problem but they should be under a lock.

Jimenez asked the father about firearms and the father stated that he did not have any firearms in the house. After three days, Jimenez asked to see where the knife collection was kept. Father told Jimenez that the knives were still in the same cabinet as the last four years and that he had not had a chance to get a lock for the cabinet. Jimenez said that he was dismayed and disappointed by father’s failure to put a lock on the cabinet. That afternoon father put a lock on the cabinet and emailed Jimenez pictures of the lock. Jimenez again emailed the father asking him what he was planning to do with the key and the father responded that the key was in a separate safe with a combination lock.

3. J.’s pocket knife: When Jimenez was at the father’s house, father also showed Jimenez a few pocket knives that J. owned and was in his bedroom drawer. Father told Jimenez that J. qualified for the possession of the knives on Boy Scout camp-outs after having shown that he knows and abides by the rules for safe and responsible pocket knife use. Jimenez looked at the knives and told father that he was not concerned about them. J. had told his father that his mother was fine with the pocket knife too.

In December 2010, when J. was visiting with his mother, he had taken his pocket knife with him. The father emailed the mother telling her that J. had taken the pocket knife with him to her house and that she needed to make sure that he did not leave it in his sweatshirt pocket and inadvertently take it to school. That night, after 10:00 p.m., Jimenez contacted the father and told him that he had to show up at his office the next day to explain the knife situation.

Father complied and went to Jimenez’s office where he was shown an enlarged picture of J.’s pocket knife and was read the definition of criminal child endangerment. He told father that he was considering reporting the father to child protective services for child endangerment.

4. Father’s home’s safety plan: the day following the incident with the pocket knife, Jimenez emailed father and said he was “directing” him to walk through his house, the rear yard, garage, driveway, etc., so as to identify potential safety hazards and remedying same.

Father contacted Jimenez the next day and indicated that he was concerned about Jimenez having ex parte communication with the mother and that he was interfering with his relationship with J.

At the hearing of father’s motion to stay and to remove Jimenez as a 730 evaluator, the judge agreed with the father and commented that it was surprising to see the things that Jimenez had done while being tasked to perform a completely neutral and objective child evaluation. The trial judge specifically indicated that if “nothing else, [Jimenez] has lost his objectivity and is no longer evaluating.”

Here is the punchline. Despite this comment, the trial judge indicated that he was “not inclined to waste all of the time,the effort, and expense that is put in this 730 evaluation.” The court further stated to the extent Jimenez has lost his objectivity, that bears on the validity of his recommendation. The judge deemed that being an appropriate area for his cross-examination. The court went on to say that despite Jimenez allegedly losing his objectivity, it did not believe that his conduct was so egregious to justify his removal. The court reserved on the issue of Jimenez’s fee which was $42,000. The judge continued the hearing on modification of J.’s custody.

By the time of the hearing of mother’s custody modification, the court had received Jimenez’s 730 report. In his report, Jimenez recommended that the “final decision” on J.’s middle school education, medical care, dietary restrictions, psychiatric and psychological treatment should be with his mother. Accordingly, the court suggested a custody schedule with alternate weekend and perhaps a midweek dinner visit for dad.

In May 2011, mother filed an OSC seeking full legal and physical custody of J., with father having very limited visitations. She also asked for an increase in child support and father sought psychotherapy with emphasis on co-parenting for three months before reunification with J. Mother indicated that Jimenez had found father having depressive symptoms, and poor judgment with a mild risk of suicide. He also indicated that father takes a myriad of psycho-tropic medications.

Father denied taking a myriad of medications and that he only took blood pressure and cholesterol medication. Father also argued that Jimenez had omitted from his report significant tests showing that mother was exhibiting psychological dysfunction of mild to moderate severity. Father argued Jimenez’s failure to include this information further showed his bias in favor of the mother. The court awarded sole legal custody to mother and refused to appoint a special master. The court stated that it did not have the authority to delete the provision but since mother had sole legal custody, there was no need for a special master. This appeal followed.

The court of appeal reversed the lower court’s denial of father’s motion to remove Jimenez and the award to mother of sole custody. The court of appeal noted that “independent evaluations are generally given great weight by the judge in deciding contested custody … issues.”

The court of appeal specifically referenced California Rules of Court rule 5.220 which governs child custody evaluators appointed under section 730 and required them to be objective and neutral and gather “balanced information” from both sides and control for bias. Rule 5.220 specifically prohibits an appointed evaluator from ex parte communication with a party’s counsel or court, except in limited conditions. The court of appeal further emphasizes that “impartial objectivity is a critical requirement for a section 730 child custody evaluator.”

In applying these standards, the court of appeal found that there was evidence Jimenez had shown bias in favor of the mother. This was also found by the lower court. The court of appeal, however, disagreed with the lower court that Jimenez’s conduct was not egregious enough to justify his removal and to waste all the time and expense that were invested in the case. The court of appeal held, that “even if we apply the most deferential standard of review, we conclude under the totality of the circumstances here, that the court abused its discretion by denying father’s application to stay the evaluation and remove Jimenez as the evaluator.”

With respect to the lower court’s order granting mother sole custody, the court of appeal again held that the lower court had abused its discretion. In its evaluation, the court of appeal held that “we bear in mind that child custody evaluations carry great weight and entail potentially grave consequences to the parents as well as the best interests of the children. The mandate that an evaluator be fair and impartial is non-negotiable.” The court of appeal observed that the trial court “expressly relied on Jimenez’s report in awarding mother sole legal custody and stated for the record that it found the report was ‘detailed and useful.'”

The court of appeal also held that the trial court erred in denying father’s request for appointment of a special master. The court of appeal noted that the record suggests that each parent’s deeply held views are well-intentioned and credible and neither one is clearly right or wrong. The court of appeal’s directions on remand were to enforce the parties’ agreement in their judgment to use a special master.

Lastly, the appellate court held that the trial court erred in failing to determine reasonable evaluator’s fees. Father had argued that the trial court had erred by failing to set a reasonable fee for the evaluator. The court of appeal, relying on its prior rulings, agreed with the father. The trial court observed that Jimenez’s fees of $42,000 was “exceptionally high.” The court of appeal found that the trial court had a duty to conduct an evidentiary hearing and review Jimenez’s billings statements and arrive at a fair compensation.

The court in the case of In re Marriage of Adams reaffirms the important function that a 730 evaluator plays in child custody matters. Orange County child custody 730 evaluators must maintain their impartiality so the courts can be aided by their recommendations and make custody orders that are consistent with a child’s best interest.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
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