This rule of court is adopted under Family Code sections 211 and 3117.
Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interests 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, Family Code section 3118, Evidence Code section 730, or chapter 15 (commencing with section 2032.010) of title 4, part 4 of the Code of Civil Procedure.
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.
(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;
(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;
(D) Inform the parties, other professionals serving on the case, and then the judicial officer about the child’s desire to provide input and address the court; and
(E) If so informed by the child at any point, provide notice that the child has changed their choice about addressing the court. Notice must be provided as soon as feasible to the parties or their attorneys, other professionals serving on the case, and then to the judicial officer.
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.
(f) Presentation of findings
All evaluations must include 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 do all of the following:
(1) Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached;
(2) Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews;
(3) 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 interests of the child; and
(4) Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interests of the child if making any recommendations to the court regarding a parenting plan.
(g) Confidential written report; requirements
(1) Family Code section 3111 evaluations. An evaluator appointed under Family Code section 3111 must do all of the following:
(A) File and serve a report on the parties or their attorneys and any attorney appointed for the child under Family Code section 3150; and
(B) Attach a Notice Regarding Confidentiality of Child Custody Evaluation Report Under Family Code Section 3111 (form FL-328) 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.
(2) Family Code section 3118 evaluations. An evaluator appointed to conduct a child custody evaluation, investigation, or assessment based on (1) a serious allegation of child sexual abuse; or (2) an allegation of child abuse under Family Code section 3118 must do all of the following:
(A) Provide a full and complete analysis of the allegations raised in the proceeding and address the health, safety, welfare, and best interests of the child, as ordered by the court;
(B) Complete, file, and serve Confidential Child Custody Evaluation Report Under Family Code Section 3118 (form FL-329) on the parties or their attorneys and any attorney appointed for the child under Family Code section 3150.
(h) 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.
(i) 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.
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.
(k) 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:
(1) Videoconferences;
(2) Telephone conferences;
(3) Audio or video examination; and
(4) Scheduling of appearances.