Custody Evaluators and the Courts

a speech to the New York Matrimonial Commission

Robin Yeamans, Esq. 2/17/05 -- Matrimonial Commission, NY

As I'm an attorney from California, not New York, I very much appreciate the opportunity to address this Commission. I'm a graduate of Stanford Law School and have practiced law 35 years and have been a certified family law specialist since 1980. I've submitted notebooks with a specific judicial protocol and statewide rules and laws that have made a tremendous difference in family court in California. I wanted to thank Mr. Braunstein [an attorney who'd mentioned California has good regulations] for his kind remarks.

Since 1996, I've worked with parents in Silicon Valley, in the San Jose area of California regarding problems with the family court there. And as the chair of the advisory board of the National Coalition for Family Justice, I came to know something of the situation in New York State. I was shocked to find that in family law New York is about 6 years behind California. The problems that face family courts are the same throughout the country, and about 6 years ago a raft of rules and laws were passed in California that very much ameliorated our situation.

In California we found that the cases that were coming back to court again and again were not "high conflict" cases. "High conflict" is almost always a complete misnomer. The repeating cases were domestic violence and abuse cases. This same understanding was definitively adopted by the California legislature which nowhere in legislation has used the term "high conflict" but which since 1998 has adopted many laws aimed at curbing domestic violence and abuse.

The California Judicial Council is a body authorized by the California Constitution and Chaired by the Chief Justice of the California Supreme Court. It provides policy guidelines for the courts and creates our statewide rules. California's state court rules are at its website: www.courtinfo.ca.gov/rules.

Effective January 1, 1998, the California legislature for the first time required training in domestic violence for all custody evaluators. The Judicial Council (1) detailed the content of this training, (2) set forth what every custody evaluation shall contain and (3) specified enforceable ethics for evaluators. Before this, the only ethics were those of professional associations, and the courts wouldn't enforce those. At the same time, the legislature enacted, Cal Bus & Prof Code sec. 2936, which made the Code of Ethics of the American Psychological Association binding on psychologists practicing in California---something judges will now enforce. This section and the other laws and rules I will refer to are in the notebooks I have provided.

California Rule of Court 5.230 requires that every custody evaluator receive an initial 16 hours of domestic violence training which are described in detail and then 4 hours of updated training every year. If someone does not have this training, they cannot give a custody recommendation to the court. This rule was first enacted in January 1999, and over the more than 6 years in which it has been in effect, it has had a huge effect on the consciousness of evaluators---not enough effect on some, but a beginning. It reduced the reliance on the pseudo-scientific victim-blaming doctrine of Parental Alienation Syndrome throughout the state, but there still are evaluators who do not fully understand how battering and abuse relate to parenting. Nonetheless, the rule is a beginning.

Rule 5.225 requires training for all custody evaluators---40 hours of general training the first year.
California Rule of Court 5.220: (e) states in part: "All evaluations must include:
(a) Data collection and analysis that . . . allow the evaluator to observe and consider each party in comparable ways; . . ." We still get evaluators who talk 70% to one parent and 30% to the other, but the rule permits us to expose this unfairness and gives litigants a basis to try to compel biased evaluators to function fairly.

This is repeated in subsection (h): Ethics: "In performing an evaluation, the child custody evaluator must: (1) Maintain objectivity, provide and gather balanced information for both parties, and control for bias; . . ."

I would like to continue with a word of caution. When the problems of abused parents were ignored by the court in San Jose, California, eventually the parents---fathers and mothers together---leafleted and picketed the court for an entire year. You would have no way of knowing this because the media blacked it out.

In the year 1999, we had a superb presiding judge, Jack Komar, who is now on the Judicial Council, and he appointed a committee to look into the problems. In January 2000, he issued a "Protocol for Change in Family Court," and I have brought that with me. From the Protocol alone you can't discern the depth of the problems that lead to that document.

One of the problems Judge Komar addressed was what in California we call "Attorneys for Children," and which elsewhere are called Law Guardians or Guardians ad Litem. We thought law guardians would be a good idea, but in practice it wasn't. This problem had gotten way out of hand with favored attorneys being appointed over and over and their fees crushing already financially stretched parents. In addressing this problem, it is key to keep in mind:

Attorneys are trained as attorneys---in contracts, law, torts----not as social workers, not as psychologists, not as therapists. Attorneys are often described as being either combative or dry as dust. In either event, they are not well suited to give opinions on what is best for children and should stay in their role as attorneys. But generally when they are appointed as guardians for children, they not only act way out of role, and out of their training, but they are encouraged to act way out of their role as lawyers. This is a terrible, and sometimes tragic, mistake. The results in San Jose were as bad as they have been elsewhere.

The best thing to do is DO NOT APPOINT LAW GUARDIANS at all. Period.

The Komar Protocol called for a review of attorneys for children, which looks like quite a mild proposal. In fact, Judge Komar and his successor presiding judge virtually ended the practice of appointing law guardians, and they monitored the judges' compliance with the Protocol by getting printouts and making sure that the same attorneys weren't appointed to the few cases in which such appointments were made. What had been happening was that in troublesome cases judges just appointed law guardians, hoping this would make the cases go away, but in most such cases, the attorneys who wanted these appointments were poor practitioners, made the cases worse, sided with the abuser and impoverished the litigants. Judge Komar was very right to rein in this practice. In doing so, he stopped many of the repeating cases from coming back to court.

Judge Komar in his "Protocol for Change" has a long section on "Outside Custody Evaluators/Assessors," who are called "forensics" in New York. The problems of untrained, unethical forensics were the same in California. Judge Komar called for ensuring that evaluators were trained and ethical. His Protocol indicated that the appointment of a forensic would occur only following a hearing at which a party would be given an opportunity to object to the referral and to the identity of the forensic. The intent and effect of this was very greatly to reduce the use of forensics in custody cases. The effect of this was very good. The litigants' expenses were very much reduced, and the results were just as good.

I've stressed things that can be done by judges. It does not have to await legislative action. Almost everything I've discussed here today was done by judges and by the Judicial Council. It is the judges who have let the law guardians, forensics and the expense of litigation run out of control, and it is up to the judges to manage the courts so that those problems are reined in. Judges like Jack Komar can draw a judicious line of fairness that satisfies both fathers and mothers who, after all, are basically both interested in a fair process and the best for their children.