Leslie O and Thomas O were going through a divorce proceeding. They had
one child, three-year old Wyatt, and they argued over child custody. Wyatt
was a special needs child with developmental delays. He had a physiological
condition causing muscle weakness and clumsiness.
As is the law in California, when parents fight over child custody, the
court will appoint an evaluator to help determine custody. Here, the trial
court appointed a child custody evaluator. The evaluator's job was
to gather information regarding both parties from competent and relevant
sources. Among others, the evaluator interviewed both Leslie and Thomas
(each separately), a social worker from Kaiser Hospital reading from Wyatt's
medical records, and a neighbor of Thomas's. The evaluator did not
interview Wyatt's actual doctors (pediatrician Dr. Gereb and surgeon
Dr. Howell), nor Leslie's psychotherapist, Dr. Burr.
Thomas told the evaluator that Leslie suffered from a severe personality
disorder, and that she could be a threat to Wyatt's safety. When Leslie
learned of Thomas's statement, she had Dr. Burr e-mail the evaluator
and advise her that Leslie had no mental illness.
During the evaluation process, Wyatt suffered three bike injuries within
four months while in the care of his father. He received bumps on his
head, and his third injury was so severe – with broken bones –
that he required surgery. Leslie told the evaluator Dr. Howell noted that
Wyatt was not wearing a helmet while riding the bike, but Thomas's
neighbor assured the evaluator that Wyatt always wore a helmet. Besides,
the neighbor told the evaluator, she had heard that Leslie suffered from
Also, during this time, the evaluator and Thomas began a series of e-mail
correspondence which included the evaluator's negative opinion of
Thomas's legal representation.
When the evaluation was submitted, it included the evaluator's express
concerns of Leslie's severe mental health issues and whether Wyatt's
injuries were caused by Leslie's Munchausen's Syndrome by Proxy.
Munchausen's Syndrome by Proxy is a mental condition of a parent (usually
the mother) deliberately causing injury to a child to receive attention
and sympathy for herself. The evaluator based this conclusion on an inference
made by a county social worker regarding the nature of Wyatt's injuries.
(the evaluator did not investigate the cause of Wyatt's injuries,
nor is there any mention of Munchausen's Syndrome by Proxy in Wyatt's
Leslie gave copies of the report to Dr. Gereb and Dr. Howell. Dr. Gereb
e-mailed the evaluator and advised her that she had misread and misquoted
Wyatt's medical files, and that Dr. Gereb believed Leslie would make
an excellent caregiver for Wyatt. Dr. Howell also e-mailed the evaluator
and told her that Wyatt's head injuries indicated he was NOT wearing
a helmet when he was injured. Both doctors also noted that ALL three of
the injuries happened while Wyatt was in Thomas's care (thus eliminating
the issue of whether Leslie suffered from Munchausen's Syndrome by Proxy.)
Leslie's attorney requested the trial court remove the evaluator and
strike her evaluation from the record. The trial court denied Leslie's
request and Leslie appealed.
The Appellate Court reversed.
California law states that an evaluator must maintain objectivity, control
any bias, get balanced information from both sides of a matter and protect
confidentiality. The evaluator failed to do so. She relied on secondary
sources (such as Thomas's neighbor when she should have relied on
Wyatt's doctors), skewed and misquoted documentation (such as her
interpretations of Wyatt's medical records), and she had inappropriate
communications with Thomas (such as advising him on the competency of
his attorney and that he should get a new one). She further showed her
bias by referencing Leslie's so-called (at least by Thomas) mental
illness 78 times, but never once contacting her therapist to determine
Leslie's state of mental health.
It is the job of the judge to make decisions, but those decisions often
need outside expert opinions to make them. Evaluators are used to gather
information and make recommendations, but it ultimately up to the judge
to decide. If an evaluator uses inappropriate means to evaluate, a judge
cannot make an appropriate decision.