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Custody Evaluators Are Given Discretion Re Custody Evaluations

Justices say "[t]he parties have litigated to the point of financial ruin". . .

In affirmance, Fourth District holds that trial court did not err by denying Mom's move away request, changing their child's primary custody to Dad, and denying Mom's request for another fee order

Winternitz v. Winternitz(February 27, 2015; ordered published March 27, 2015)California Court of Appeal 4 Civil D065131 (Div 1) 235 Cal.App.4th 644, 185 Cal.Rptr.3d 458, 2015 FA 1684, per McIntyre, J (Benke, Acting PJ and Nares, J, concurring). San Diego County: McAdam, Jr., J, and Goldsmith, J, affirmed. For appellant: Kim Robinson, (510) 832-7117. For respondent: Stephen Temko, CFLS, CALS, (858) 274-3538. CFLP §§G.37, G 

Tami and William Winternitz were married in 1985; the last of their three children, Jamison, was born in 2001. The couple separated in August 2001 and began disso proceedings in Yolo County. When custody issues arose, the parties stipulated to have a custody evaluator, Frank Leek, appointed. In his June 2003 report, Dr. Leek noted that Tami had requested permission to move to San Diego with the kids, found that she had manipulated them, and concluded that she had alienated them from William. However, Dr. Leek came to believe that the kids would have a better chance of successfully adjusting to the move and reconciling with William if he recommended the move. The Yolo County trial court dissolved the parties' marriage in 2004. In a custody order issued in March 2005, the Yolo County trial court found that Tami had alienated the kids from William, but permitted her to move to San Diego with them, subject to a custody modification without changed circumstances if a modification would be in the kids' best interests. After the move, William, an orthopedic surgeon, moved to San Diego, where he established a new surgery practice.

After several years, Tami filed a request for permission to move to Chico with Jamison. In her supporting declaration, Tami stated that she had become engaged to a man whose job was in Chico, and that she could neither find a job nor afford a home in San Diego. In opposition, William moved to modify custody and visitation, and asked for physical custody of Jamison. Tami and William met with Family Court Services, which recommended that Tami continue to be Jamison's primary caregiver. William then asked for a custody evaluation and evidentiary hearing. The trial court granted that request and appointed Dr. Robert Simon to do the evaluation. Between July 2012 and March 2013, Dr. Simon interviewed Tami, William, Jamison, Tami's fiancé, and Tami's younger sister. In his report, submitted in March 2013, Dr. Simon recommended that the trial court deny Tami's move away request and that William be designated as Jamison's primary caregiver.

At the evidentiary hearing, Tami's attorney advised Dr. Simon that she was prepared to cite, among other things, his failure to produce certain documents and to properly record and report the interviews he had conducted, as proof that he was biased against Tami. When counsel asked him if he would withdraw his report, Dr. Simon declined to do so. Counsel then reviewed the report with Dr. Simon, eliciting his admissions that he failed to produce all of his telephone records due to personnel difficulties in his office and his need to " 'wade through the variety of errors' in his records." Tami's attorney continued to cross-examine the evaluator at length, asking at one point whether he thought that "someone might question his neutrality." Dr. Simon responded that he had made mistakes " 'in terms of procedure' " in making his evaluation, but strongly believed that he had maintained " 'a neutral stance' " and was not " 'aligned with either party.' " Tami then moved to strike Dr. Simon's report, but the trial court denied that motion. When testimony concluded, the trial court found that William had shown that the move would be detrimental to Jamison, and that the technical errors in Dr. Simon's preparation of his report were not sufficient to justify striking the report or to establish that he was biased. Concluding that a custody change would be in Jamison's best interests, the trial court denied Tami's move away request, changed Jamison's primary caregiver from Tami to William, and denied Tami's request for a fee order.

Tami appealed, but the Fourth District affirmed.

Close enough for government work . . .
Tami contended that the trial court erred by denying her motion to strike, given Dr. Simon's failure to comply with Cal Rules of Court, rule 5.220 [sets out requirements for making custody evaluation]. She relied in part on In re Marriage of Adams and Jack A. (2012) 209 Cal.App.4 th 1543, 148 Cal.Rptr.3d 83, 2012 CFLR 12295, 2012 FA 1561, in which the appellate court held that the trial court erred by failing to remove an evaluator who was biased. The justices reminded Tami that she hadn't asked to have Dr. Simon removed, just his report stricken; thus, Adams and Jack A . was factually distinguishable. Moreover, the panel continued, that case "does not stand for the broad proposition" that a trial court must remove or exclude the report of an evaluator who fails to comply with all of the requirements set out in rule 5.220, and they declined to make such a ruling. The panel also declined to find guidance in Leslie O. v. Superior Court (Thomas O.) (2014) 231 Cal.App.4 th 1191, 180 Cal.Rptr.3d 863, 2015 CFLR 12938, 2014 FA 1668 [evaluator who clearly took sides must be disqualified and evaluation stricken], as Tami urged, because the facts in this case did "not rise to the level of those presented" in that case. The justices pointed out, however, that the Leslie O. court had cautioned against endorsing "appellate micromanagement of every communication or act by the evaluator" that would ensue if evaluators were required to be removed where their conduct was not in line with all requirements. The panel noted that the lower court had found that Dr. Simon's technical errors went to the weight of his report, not its admissibility, and they agreed. Besides, the justices said, Tami's attorney had engaged in extensive cross-examination regarding the report. Summing up, the justices held that the trial court had not erred by refusing to strike Dr. Simon's report.

Taking it all in . . .
Tami also argued that the trial court had ignored her presumptive right to move under Fam C §7501, failed to consider all of the factors required by In re Marriage of LaMusga (2004) 32 Cal.4 th 1072, 12 Cal.Rptr.3d 356, 2004 CFLR 9617, 2014 FA 1143 [noncustodial parent must show detriment to child from move; trial court must consider enumerated factors before ordering mod], and declined to consider Jamison's wishes regarding the move. The justices were not convinced. They were not inclined to presume that the lower court hadn't considered Fam C §7501 simply because the court failed to specifically mention that statute, since Dr. Simon had mentioned it in his report, which the court had considered in making its decision. The panel also found that the lower court had properly considered the LaMusga factors, given that it had addressed William's burden of showing that the move would be detrimental to Jamison and the record showed that it had considered those factors, along with other relevant factors. The trial court's focus on which parent would be more willing to provide the other with quality time and more flexible in making that happen, the panel said, was not an abuse of discretion, but was in line with the high court's opinion in LaMusga in considering the effect of the move on the left-behind parent. As for the lower court's consideration of Jamison's wishes, the justices found no error in the court's refusal to call Jamison as a witness, in light of the fact that all parties agreed that she would say she wanted to move to Chico. Moreover, Dr. Simon had opined in his report that the risks of Jamison's being angry with William for blocking the move were not as great as the risk that she would lose her relationship with William altogether if she moved. Accordingly, the panel concluded that the trial court applied the proper criteria and had a reasonable basis for finding that the move would not be in Jamison's best interests.

The deep pocket is empty . . .
Finally, the justices considered whether the trial court erred in declining to make another fee award to Tami. They pointed out that the lower court had already ordered William to pay $44,407 toward Tami's attorney's fees. And at a hearing in February 2014, the trial court had said that William had previously contributed $69,000 toward those fees. At that time, the lower court said that the parties had litigated the case to the point where " 'neither one of them can afford to retain counsel.' " The record also showed that while William had a considerably greater income than Tami, he also had a greater debt burden. Moreover, the panel found that Tami failed to show any clear error in the lower court's denial of her fee request. The panel thus concluded that Tami and William had "litigated to the point of financial ruin, to their own detriment and, more importantly, the detriment of their daughter." The justices urged the parties not to cause Jamison any more emotional distress and to comply with the trial court's orders. They also specifically urged Tami to " 'avoid[] engaging Jamison negatively with regard to her Father and the order of the Court.' "


The main lesson from this case is that a custody evaluator does not have to comply with every one of the requirements in rule 5.220 in order to submit a report that will not be subject to a successful motion to strike. The trial court here was not unmindful of the ways in which Dr. Simon's report failed to meet his own standards. However, the lower court was not convinced that his errors were evidence of bias and were enough to warrant striking the report. The justices here are unwilling to disturb those conclusions and they agree with the lower court that Tami's objections go the weight of the contents of the report. Family law attorneys who want to challenge a custody evaluator's report should decide whether they want to seek to have the motion stricken or to make a direct challenge to the evaluator's objectivity and neutrality. As the panel here shows, the burden for having the evaluator removed is quite high; the facts must be clear and egregious, as they were in Leslie O. However, it seems it's not that easy to have an evaluator's report stricken either, as long as counsel's objections relate to the procedural matters. The justices tell us (and Dr. Simon admitted) that he had "improperly accepted information directly from [William]," but claimed that he hadn't used much of it, had failed to produce all of his phone records, and had failed to conform to discovery requests. Tami also claimed that Dr. Simon had "raised his voice" to her, and focused on her more than William. It's not clear whether the trial court included those objections among the ones it found valid. Be that as it may, the trial court lumped her objections into the category of procedural matters which did not rise to a level that required striking the report. Attorneys who are challenging the report should attempt to show a direct correlation between the procedural errors they are citing and the alleged bias of the evaluator, not just give the court a laundry list of errors. That may be the key to success in moving to strike the report.

It's also noteworthy that the panel does not require the lower court to specifically state that it had applied Fam C §7501 but is willing to assume that the lower court had done so because the statute was mentioned in Dr. Simons' report, which the court had considered. It's also not necessary to specifically refer to the LaMusga factors, as long as the trial court applies them. In addition, the panel makes it clear that Fam C §3042 requires the trial court to " 'consider' " and give " 'due weight' " to the child's wishes but does not mandate that the court must make its order in compliance with those wishes. As long as the trial court "applied the proper criteria" and had a reasonable basis for determining that its order was in the child's best interests, the justices are not going to reweigh the evidence and make their own determination.

Finally, this case should be a cautionary tale for parties who keep the custody war going on and on. At some point, all but the most deep pocketed litigants will exhaust their funds doing this, and neither the trial court nor the appellate court will make or affirm a fee order that permits that course of conduct to continue.

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