The Role of Child Custody Evaluators

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 mental illness.

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 medical records.)

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.

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