The recent California Supreme Court decision in People v. Sanchez set off a firestorm of discussion about its application to child custody evaluations. Sanchez holds that facts considered by an expert in forming an opinion still must be independently established through non-hearsay evidence. Some family court judges started saying that they would be unlikely to order evaluations in light of Sanchez.
But Sanchez does not govern statutory child custody evaluations. Child custody evaluations are a form of admissible social study like probate investigator reports in guardianship cases and social work reports in dependency court. The current incarnation of the statutory scheme derives from the same class of admissible social studies employed in dependency and probate cases.
Historically, family courts ordered Welfare and Institutions Code and probate investigations in family law custody disputes. By the mid-20th Century, the Legislature had created domestic relations investigator programs in San Francisco and Los Angeles Counties (Former Code Civ. Proc. §261a; former Code Civ. Proc. §263) Former Civ. Code §4602 was added to the Family Law Act in 1969. Other counties relied on probate and Welfare and Institutions Code reports in custody disputes. Rules governing domestic relations case investigators were adopted as part of former §263 in 1951.
A 1943 California Supreme Court opinion notes,
The investigators of domestic relations cases occupy a position of importance in the court as adjuncts of the state judicial system (cf. Noel v. Lewis (1917), 35 Cal.App. 658, 662 [170 P. 857]). It is their province, under the direction of the judge, to “assist the court in the transaction” of that particular part of its judicial business which deals most intimately with the welfare of children of broken homes. They are in a position to produce for the judge evidence which might not otherwise be available at all and certainly not otherwise so expeditiously. As unbiased and trained observers they may gain at first-hand information which is of vast importance to the court and to the children whose interests are involved, and also to the parents whose claims are just, all to the end of giving actual vitality to the proposition that the children's welfare shall be paramount in determining custody problems. They may see the homes in which the children live, they may call without previous notice of the exact time, they may observe whether children appear to be supervised or neglected, nourished or famished, happy or abused. They are far more than “messengers” of the judge without “province to recommend a decision.”
Fewel v. Fewel (1943) 23 Cal.2d 431, 435
In Fewel the Supreme Court focused on custody investigators as percipient witnesses. But subsequent legislation and Judicial Council rule-making have expanded the scope of these investigations to include hearsay sources.
In the early 1990’s former Code Civ. Proc. §263 and Civil Code §4602 were folded into the new Family Code. Family Code §3110 (“court-appointed investigator” defined) reconciled inconsistencies between §263 (referring only to “domestic relations case investigator”) and Civ. Code §4602 (referring to “probation officer, domestic relations investigator, or court appointed evaluator’’).
The requirement that the evaluator/investigator have mental health qualifications was not added to the scheme until 2000. (See Ohmer v. Superior Court (1983)148 Cal.App.3d 661 holding that due process does not include the right to cross-examine a child custody investigator whose academic training consisted of an undergraduate geology degree.)
Today’s Fam. Code §§3110 et seq. expressly incorporate evaluation, investigation and assessment into the model. When the Legislature added the mental health training, continuing education, and experience requirements in 2000, it also expanded the Family Code investigation/evaluation statutes to govern private practice mental health professionals. Private practitioners had previously been appointed under Evid. Code §730 because the custody investigation statutes had been limited to court staff. Judicial discretion, rather than child-custody specific statutes and court rule, governed their qualifications and work product. In 2000 the Judicial Council adopted Cal. Rules of Court, rules 5.220 and 5.225 in 2000, expressly grandfathering in private practitioners previously appointed under §730.
Since the 2000 amendments to the Family Code merging evaluation with investigation, expanding the scope of the statutes to include private practice professionals, establishing qualification and training requirements, and setting forth detailed protocols for both the evaluation and investigation components of the model, all child custody evaluations and investigations are governed by those very specific requirements rather than the general provisions of the Evidence Code. Note that most, if not all of the reported decisions under Evid. Code §730 focus on jury trials.
In an era where judicial economy is vital, the investigative component of a custody evaluation serves an important public policy function. Most parents simply could not afford the long trials that would be needed to independently establish the important facts that evaluators gather. The specific protocols in the Family Code and the Cal. Rules of Court direct investigations to include hearsay sources such as collateral witness interviews and document review.