People v. Sanchez: New Ruling Affects Use of Experts / Custody Evaluators and the Rules of Evidence in Family Court

In custody cases, attorneys frequently use child custody evaluators to provide professional opinions and recommendations. Evaluators prepare a report that is submitted to the court and helps the parents, attorneys, and judge make decisions about child custody. These reports are valuable for many reasons.

First, evaluators provide insight into custody that judges don’t have. Second, they spend significant time with the parents and children prior to making recommendations. They will also likely interview collateral witnesses (step-parents, grandparents, friends) and examine various documents, such as medical records, report cards, or CPS reports.

In 2016, the California Supreme Court made a ruling that calls into question an evaluator’s ability to rely on those collateral interviews and documents. The Court held in People v. Sanchez that experts (such as a custody evaluator) cannot rely on facts learned via interviews and documents unless they are independently proven. That is to say, collateral witnesses must be brought to court to testify, and each document must be submitted into evidence. At that point, an evaluator can rely on them in rendering a recommendation. Otherwise, the evaluator cannot rely on that information.

That is to say, collateral witnesses must be brought to court to testify, and each document must be submitted into evidence. At that point, an evaluator can rely on them in rendering a recommendation. Otherwise, the evaluator cannot rely on that information.

It’s vital that custody evaluators have a “big picture” understanding of your family and your children in order to provide a recommendation that will be effective for you. With that in mind, attorneys have figured out how to deal with the new rule in a couple of ways:

1. Admit documents into evidence, if possible. Medical records may be admissible, but CPS records are likely not.

2. Come to an agreement with the other side regarding certain evidence that will be admitted. Report cards are a good example here.

3. Provide a closed universe of information to the evaluator, previously agreed to by the opposing side. The downside is that the evaluator may not get a complete picture of your family’s situation.

The new rule about experts should not discourage parties or attorneys from using custody evaluators. They provide valuable insight to courts that are fraught with too many cases. The rule will, however, require your attorney to give more time and attention to using experts, and admitting their recommendations into evidence.

If child custody is an issue in your case, make sure your attorney is well-versed in using experts and the rules of evidence.

 

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ABOUT THE AUTHOR: KEELEY L. NICKELSON is an attorney with FORESTER PURCELL STOWELL PC, a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. SheH can be reached at info@foresterpurcell.com or 916 293 4000. This information is general in nature and should not be construed as legal advice.
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