While evaluating a custody case, attorneys must decide whether to advise their clients to invest in a custody evaluation.
A custody evaluation is a process in which a mental health professional, typically a psychologist, evaluates the parents, child(ren), and collateral witnesses to identify issues with the situation and, in some cases, make a recommendation to the court regarding an appropriate custodial arrangement.
These types of evaluations often involve psychological testing, multiple interviews, and other data from reliable sources, such as physicians, daycare providers, teachers, police reports, mental health records, etc.
In recent years, the use of child custody evaluations has significantly declined. The evaluators themselves were often used as key witnesses who could testify to their personal observations of the parents, children, and other interviewed witnesses.
Many factors have contributed to the decline in custody evaluations in family law cases, such as the rising cost of retaining a custody evaluator or a more widely acceptance of shared physical custodial schedules. When custody evaluations were used more in the past, a family court judge would read the entire report, sometimes 50-100 pages long, before the custody trial even began. Some judges would require the evaluator to testify during the trial and not consider the hard copy of the evaluation itself. This was a longer process, which inevitably led to high costs.
A recent California Supreme Court case, People v. Sanchez, may have additional impacts on the practicality and implication of custody evaluations.
Before Sanchez, there was a strong precedent set that experts could rely on different forms of hearsay, such as witness statements during interviews, to form an opinion based on their investigations. ‘Hearsay’ is a statement made out of court that is used in court as testimony by a witness who is not the actual person who made the statement. A hearsay statement can be either written or oral, and the out-of-court statement is being provided in court as true and accurate to help prove a case. Typically, hearsay evidence is inadmissible in court because this type of testimony is unreliable and difficult in proving the validity and truth of what was said by the actual person who made the statement. Courts want to prevent these secondhand statements from being used as evidence at trial because of their potential to be unreliable and inaccurate.
In Sanchez, the California Supreme Court barred expert witnesses from relying on hearsay statements, unless the statements were allowed in under an exception. This ruling means that a custody evaluator may only rely on evidence that is admissible or already admitted when forming their expert opinion. For example, evaluators may not consider facts learned through their interviews with family members and documents unless they are individually proven, both parties stipulate and agree to those facts, or they are physically brought into court to testify which may be more costly and time consuming.
Evaluators provide an understanding into custody that many judges are unable to produce. They spend a significant amount of time with each party and their children to form an opinion and make recommendations. It will be interesting to see how jurisdictions outside of California will react to this ruling and if they will consider this new precedent or not.
Attorneys and parties should think about securing the admissibility of any documentation or testimony of any witness that an expert is to rely on to form an opinion during their custody evaluations. Additionally, attorneys and parties need to be prepared and anticipate that a court may strike testimony or evidence, including custody evaluations, whole or in part, where an evaluator is using or relying on an out-of-court statement made by someone else. Parties and attorneys should be aware that admitting an expert’s recommendations and findings maybe more complex now and require more time management and preplanning.
In any custody case, it is best to consult with an attorney to asses your case and to determine whether a custody evaluation is needed.
Lehigh Valley Family Law is a publication of KingSpry’s Family Law Practice Group. It is meant to be informational and does not constitute legal advice.
