Child Custody Order Reversed Based on Evidence of Court-Appointed Expert Witness' Bias

January 10, 2013
By Thomas M. Huguenor on January 10, 2013 8:28 PM |

Laguna_Beach.jpgThe California Court of Appeals, Fourth Appellate District reversed an order awarding sole custody of a child to the mother. The court ruled in In re Marriage of Adams, Case No. G045920, slip op. (Cal. App. 4th, Oct. 16, 2012), that a court-appointed expert witness displayed bias against the father and in favor of the mother that unduly influenced the remainder of the proceedings.

The parties' son, identified as J., was diagnosed with Asperger's Syndrome, an autism spectrum disorder, when he was very young. By all accounts J. is a very intelligent child, and both parents care for him very much. The parents have differing views on the best way to care for him, however. When J.'s parents divorced in 2008, they agreed to submit future disputes regarding J. to a licensed mental health professional who would act as a special master. If either parent disagreed with the special master's recommendation, they could petition the court. The parents shared joint custody of J., with a schedule of visitation periods.

A disagreement regarding where J. should attend middle school arose in 2010. The parties eventually agreed to the appointment of David J. Jimenez as an expert witness, pursuant to California Education Code § 730, to conduct psychological evaluations of J. and the parents, in order to make a recommendation as to custody and school enrollment. Jimenez recommended that J. attend school in the Laguna Beach Unified School District, the mother's preference.

The father filed a motion to stay the evaluation and remove Jimenez. He cited examples of Jimenez allegedly exceeding his authority as a section 730 evaluator and displaying bias in the mother’s favor, including the acceptance of multiple ex parte communications from the mother regarding the father. The father said Jimenez displayed an “escalating willingness to intervene” on the mother’s behalf and “extreme bias” in her favor. Slip op. at 11. The father cited multiple alleged violations of the California Rules of Court, including a failure to maintain objectivity in violation of Rule 5.220(h)(1).

The court held a hearing and, though it found Jimenez had displayed bias, denied the father’s motion. It later granted the mother sole custody of J. and declined to appoint a special master.

The appellate court, in reversing the trial court’s order, discussed the critical importance of court-appointed experts remaining disinterested. Because courts give great weight to a section 730 expert’s recommendations, impartiality is vital to protecting the parties’ rights. The appellate court ruled that the trial court erred in denying the father’s motion to remove Jimenez as expert, citing its own precedent, In re Marriage of Laurenti, 154 Cal.App.4th 395, 400-01 (2007), where a single ex parte communication by an expert was deemed sufficient to remove a section 730 expert. It reversed the award of sole custody as well, due to the possibility that both J. and the trial court had been influenced by Jimenez’s bias.

Thomas Huguenor is a divorce and child custody lawyer certified by the State of California. For more than 35 years, he has represented people in San Diego finding their way through the California divorce process. Contact us today online or at (858) 458-9500 to schedule a free and confidential consultation.

More Blog Posts:

Juvenile Court May Exercise Jurisdiction Over a Child Even Without Parental Negligence or Abuse - In re Maricela H., San Diego Divorce Attorney Blog, December 6, 2012

Parent's Drug Use, Tardiness to School are Insufficient to Show Risk of Imminent Harm to a Child in a Dependency Proceeding, San Diego Divorce Attorney Blog, November 29, 2012

Father Sues for Custody of His Daughter After She Appears on Television Program "Toddlers and Tiaras," San Diego Divorce Attorney Blog, August 23, 2012

Photo credit: By User:Infratec (Own work) [Public domain], via Wikimedia Commons.