Independent Custody Evaluations

Under California Family Code section 3111, in preparation for a child custody hearing, either parent may request or the court may order a custody evaluation. This is a confidential report written by an evaluator that the court will consider in making custody orders. The main goal of the report is to provide an analysis of the health, safety, welfare, and best interest of child with regard to custody. (Note that the court must appoint an independent evaluator when there has been a current or previous determination of child sexual abuse under California Family Code section 3118.

Because the reports from the independent evaluator are generally given great consideration by the judge in deciding custody, whoever is appointed or chosen as the evaluator must be objectively impartial, and may not be biased for or against one party. Therefore, the report must comply with a set of state standards or guidelines. The chosen evaluator must have a minimum of domestic violence and child abuse training. The guidelines are to ensure the evaluator will “maintain objectivity, provide and gather balanced information for both parties, control bias,” as well as protect confidentiality of the parties and children and not release case information to any individual except as authorized by court or statute. (Leslie O. v. Super.Ct. (2014) 231 CalApp4th 1191, 1204.)

The evaluator may be given access to family court mediation notes, child welfare agency notes if applicable, and access to any juvenile court files. The report may also include a suggestion to appoint an attorney to represent the interests of the child, or what is called, “minor’s counsel.”

Child Custody Evaluations

Once the report is completed, it is filed at court and a copy is provided to each party. The report is placed in the confidential portion of the court file and there can be punishment for any party or person who discloses the report to a non-party who is not authorized to read the report. The report itself may be used as evidence by either party, however it is not the final determination for custody – only the judge can make a final determination of fact or custody. The court will give it great consideration, but anything mentioned in the report is not a “finding of fact.” Therefore, if a report by an evaluator is not favorable to one party, this does not mean that party will lose out on custody. A court should not simply accept an evaluation in whole and automatically make it the order of the court. It should only consider it as part of the overall evidence in making its orders. In addition, both parties are given the opportunity to cross-examine the evaluator about what steps he/she took to complete the report, and how he/she came to his/her custody conclusion.

One consideration for determining whether a custody evaluation is appropriate in your case is the cost. When the court appoints an evaluator, the court “shall” inquire into the supporting parent’s or parents’ ability to pay for the evaluator. If the parent(s) are able to pay, the court may order them to pay all or part of the evaluator’s fee. The parties themselves are also free to agree before the evaluation to split or apportion the costs of the evaluation.

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