Certified Family Law Specialist, State Bar of California, and Board of Legal Specialization

The Court Ordered A Child Custody Evaluation. Now What?

Imagine you have a child custody case, and the court ordered an evaluation.  You and the other side agree to the evaluator and he or she issues a report.  You do not like the report and feel that the evaluator made a mistake. You may be unsure about what to do next. Fortunately, our dedicated child custody attorney could help.

What to Know Prior to a Child Custody Evaluation

There are a few important parties that parents should be aware of prior to a court-ordered child custody evaluation. Firstly, is the Evidence Code Section 730 expert. This is the court’s expert who is usually appointed either by court order or a stipulation and order from the parties (an agreement) and then signed by the court as an order. Next is the Evidence Code Section 733 expert. This is an expert that one of the parties hires when that party does not like what the Section 730 expert recommends.

There are also a few statutes that parents should be aware of. One statute is Family Code Section 3111. This section authorizes the Court to order a child custody evaluation when it is seeking to issue an order as to the best interests of the child(ren). Next is Family Code Section 3118. This section authorizes the Court to order a child custody evaluation where there is an allegation of serious sexual or other abuse of a child.

Now, here is the potentially complicated part.  If we are talking about a child custody evaluation, it is important to understand what kind of evaluation will be ordered. The Court can order an evaluation under Family Code Sections 3111 or 3118. So, if the Court appoints an Evidence Code Section 730 expert (the Court’s expert) it will do so to conduct either a 3111 evaluation or a 3118 evaluation.

What are the Differences Between a Section 3111 Evaluation and a Section 3118 Evaluation?

Section 3111 provides that the court may appoint a child custody evaluator to conduct an evaluation when the Court needs more information on ruling on what is in a child’s best interest.  After all, that is the standard. Section 3118 on the other hand is invoked where there are serious allegations of abuse, sexual or otherwise and the court makes a finding that such allegations exist.

It is important to know the difference between the two types of evaluations.  Once is focused on best interests of the child. The other has a more extensive focus on child abuse and/or sexual abuse. These types of evaluations are not interchangeable. It is important that all counsel know the type of child custody evaluation that is ordered and that the experts know as well.

What to Do After Receiving an Evaluation Report?

If you do not like what the Evidence Code Section 730 expert recommended, your option is to hire an Evidence Code Section 733 expert. You can either hire this person to testify against the 730 expert or to consult with you.  Before doing this; however, the 733 expert must do the following:

  1. Have a copy of the order appointing the 730 expert. The order will have the scope of the evaluation defined and will state whether or not the evaluation is conducted under 3111 or 3118.
  2. Make sure that the 733 evaluator has a copy of the report;
  3. Make sure that the 733 has a copy of all relevant documentation.
  4. Make sure that the evaluator knows California Rule of Court 5.220 which governs child custody evaluators.

If a 733 evaluator does not have at least the above 4 things, this will be fertile ground for cross examination.  Preparation is important.  Experts are expensive.  Make sure yours is prepared.

When you hire an attorney for your child custody matter, be sure that he is well versed in the differences between a Family Code Section 3111 and a Family Code Section 3118 evaluation. Make sure that he knows what the evaluator should be looking for and that the evaluator has all of the information necessary to make an informed recommendation.

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