In re Marriage of Adams & A: The Court of Appeal said the court abused discretion by rejecting the husband’s plea for stay and removal of the evaluator.
By Garrett C. Dailey, Family Law Specialist
FACTS: Father (F) appealed post-judgment order awarding sole legal custody to mother of child (C), now 14 years old. C had Asperger’s Syndrome, high functioning autism. Parents disagreed fundamentally on how to raise C. Mother published a book on autism, lectured on it and helped other parents find services; F was a special education attorney with a master’s degree in psychology.
In the 2008 divorce, parents stipulated to submit future disputes re C to a special master selected per judgment. In 2010, a dispute arose as to which middle school C should attend in the fall. F e-mailed mother asking that a special master be selected to gather information to make a school recommendation for C. F believed C should attend school in the Newport-Mesa USD, and C had told him mother wanted to transfer him to the Laguna Beach USD, where she had moved. Parents continued to argue through e-mail.
In 5/10, the mother filed an OSC seeking sole legal custody. She asked the court to order an evaluation under Evidence Code section 730 to determine whether F “is capable of being an effective parent without supervision.” She asked the court to modify the judgment’s special master requirement, asserting their past use of special masters had “been to no avail.” F responded with his own OSC, seeking a special master, with a declaration outlining mother’s obsessive dealings with C’s autism.
In re Marriage of Adams & A: Parties Agree to a Psychological Exam
By 7/10 stipulated order, parties agreed to submit to a full section 730 psychological exam by E so he could make custody determination; E’s report would “be admitted into evidence subject to cross-examination” at any custody hearing; and parties would divide the cost of E’s fees.
In 8/10 stipulated order on mother’s OSC, parties agreed E would serve as the special master but that they would not submit issues to E in his capacity as special master until he completed his section 730 evaluation, unless the parties stipulated in writing and E agreed “to so act.”
In separate 8/10 stipulated order, parties agreed that: E would recommend a school first and they would place C in that school, but the recommendation would be without prejudice and subject to change after 730 report was completed. E recommended that C be enrolled in the Laguna Beach USD.
Plea for Staying the Evaluation and Removing the Evaluator
In 12/10, F filed an ex parte application to stay 730 evaluation and remove E as the evaluator for acting outside the scope of a section 730 evaluation and demonstrating a bias in favor of mother. F presented a detailed, credible history of E’s bias and actions outside the scope of the evaluation. F’s request to present expert testimony denied. Court found E “did appear to step outside the limited role of a 730 evaluator,” but felt that removal was too draconian and it did not want to waste all of the time and expense that E had put into the case.
After interviewing C in chambers, trial ct. ultimately granted the mother sole legal custody based on its finding F was “unable to effectively co-parent . . . . [esp. because of school dispute].” Court would not appoint a new special master as F requested because, so long as mother had sole legal custody, there was no need for a special master.
F appealed and Court of Appeal reversed the order denying F’s removal motion and the legal custody modification order, including the order for each to pay half of E’s fees. Costs on appeal to F.
HELD: Because court awarded mother sole legal custody based on Evidence Code section 730 evaluator’s biased report and on C’s statements which may have been influenced by E’s bias, custody order and order denying F’s motion to remove E reversed.
Loss of Objectivity in the Process of Evaluation
Court of Appeal noted the trial ct. made a factual finding that E lost his objectivity, a finding clearly supported by substantial evidence. When E ordered F to immediately prepare a safety plan covering his entire house, garage and yard and to change his “perspective,” E showed he had developed a negative prejudgment of father with no adequate rational basis, such that he presumed F’s custody of C endangered the boy. E “established a pattern of acting upon mother’s complaints against father, resulting in the evaluator making escalating demands on father accompanied by unreasonable deadlines and threats. The trial court properly found [the evaluator] acted with bias against father.” (In re Marriage of Adams and A., supra, 209 Cal.App.4th at p. 1564.)
— Even applying the most deferential standard of review, Court of Appeal concluded, under the totality of the circumstances here, that the court abused its discretion by denying F’s application to stay the evaluation and remove E as the evaluator.
— Because the court awarded mother sole legal custody based at least in part on E’s biased report and on C’s statements which may have been influenced by E’s bias, the order had to be reversed.
— Further, trial ct. erred by denying F’s special master request, to which parties had agreed in judgment: “Use of a special master can facilitate, and make possible, joint custody between parents with strongly contrasting viewpoints, who might otherwise arrive at an intractable impasse.” (In re Marriage of Adams and A., supra, 209 Cal.App.4th at p. 1568.)
— Court of Appeal agreed with In re Marriage of Laurenti (2007) 154 Cal.App.4th 395 that the court had a duty to review E’s billing statements and determine a fair compensation after an evidentiary hearing. Court thus erred by failing to fulfill its duty.
Impartial objectivity is a critical requirement for Evidence Code section 730 child custody evaluator: “[I]mpartial objectivity is a critical requirement for a section 730 child custody evaluator. The following passage from a recent opinion, although discussing special masters rather than evaluators, is instructive: ‘ “Special masters are generally used in high-conflict family law cases. One or more of the parties is likely to be combative, adversarial and difficult to deal with. The special master must remain neutral and impartial. The special master must avoid the appearance of favoring one side or the other or [aligning] himself with one side or the other.” ’ (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 569.) In Rand, ‘the focus of the case had shifted from resolving conflicts between the parents to resolving conflicts between’ the mother and the special master. (Id. at p. 570.) The Board of Psychology ‘found that it is necessary for a special master to be impartial and to preserve the appearance of impartiality . . . .’ (Id. at p. 571.)” (In re Marriage of Adams and A., supra, 209 Cal.App.4th at p. 1563.)
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Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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