New requirements for child custody evaluators became effective January 1, 2002. If you are interested in conducting child custody evaluations, you should become familiar with Family Code §3110.5 and §1816 as well as Rules of Court 1257.3, 1257.4, and 1257.7. These regulations require that an evaluator be licensed, gain thirty-six hours of specified education in 2002, another twenty hours in 2003, and gain twelve hours of continuing education each and every year thereafter. This effectively translates to twenty-four continuing education units per license renewal period for LMFTs who are acting as child custody evaluators. These hours can be used as part of your 36 hour requirement; they are not in addition to your 36 hour requirement.

This article is limited to giving the highlights of the mentioned regulations. The regulations themselves are very detailed and provide specific guidance. They are all available in full online. Family Code §3110.5 and §1816 are at www.leginfo.ca.gov. Rules of Court 1257.3, .4, and .7 are at www.courtinfo.ca.gov/rules. These links are also available on the CAMFT website, www.camft.org.

Code Highlights

Family Code §3110.5:
Qualifications for a child custody evaluator
No person shall be a child custody evaluator unless the person has completed the domestic violence and child abuse training program. The rule shall require a child custody evaluator to declare under penalty of perjury that he or she meets all of the education, experience, and training requirements specified in the rule and, if applicable, possesses a license in good standing. In addition to the education, experience, and training requirements, all child custody evaluators must be licensed as a physician and either is a board certified psychiatrist or has completed a residency in psychiatry, licensed as a psychologist, licensed as a marriage and family therapist, or licensed as a clinical social worker.

Family Code §1816:
Continuing instruction programs
Child custody evaluators described in Section 3110.5 shall participate in programs of continuing instruction in domestic violence, including child abuse, as may be arranged and provided to them. Areas of instruction shall include, but are not limited to, the following: the effects of domestic violence on children; the nature and extent of domestic violence; the social and family dynamics of domestic violence; techniques for identifying and assisting families affected by domestic violence; interviewing, documentation of, and appropriate recommendations for families affected by domestic violence; the legal rights of, and remedies available to, victims; and availability of community and legal domestic violence resources.
Rule 1257.3. Standards of practice for child custody evaluations

I. Evaluations shall include a written explanation of the process clearly describing the:

• Purpose of the evaluation;
  
• Procedures used and the time required to gather and assess information and, if psychological tests will be used, the role of the results in confirming or questioning other information or previous conclusions;
  
• Scope and distribution of the evaluation report;
  
• Limitations on the confidentiality of the process; and
  
• Cost and payment responsibility for the evaluation.

II. Evaluations shall also include data collection and analysis that allow the evaluator to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child's developmental needs; the quality of attachment to each parent and that parent's social environment; and reactions to the separation, divorce, or parental conflict. This process may include but is not limited to:

• Reviewing pertinent documents related to custody, including local police records;
  
• Observing parent-child interaction (unless contraindicated to protect the best interest of the child);
  
• Interviewing parents conjointly, individually, or both conjointly and individually (unless contraindicated in cases involving domestic violence), to assess capacity for setting age-appropriate limits and for understanding and responding to the child's needs; history of involvement in caring for the child; methods for working toward resolution of the child custody conflict; history of child abuse, domestic violence, substance abuse, and psychiatric illness; and psychological and social functioning;
  
• Conducting age-appropriate interviews and observation with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child;
  
• Collecting relevant corroborating information or documents as permitted by law; and
  
• Consulting with other experts to develop information that is beyond the evaluator's scope of practice or area of expertise.

III. In any presentation of findings, the evaluator shall:

• Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached;
  
• Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews;
  
• Only make a custody or visitation recommendation for a party who has been evaluated. This requirement does not preclude the evaluator from making an interim recommendation that is in the best interest of the child; and
  
• Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interest of the child if making any recommendations to the court regarding a parenting plan.

IV. In performing an evaluation, the child custody evaluator shall:

• Maintain objectivity, provide and gather balanced information for both parties, and control for bias;
  
• Protect the confidentiality of the parties and children in collateral contacts and not release information about the case to any individual except as authorized by the court or statute;
  
• Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;
  
• Consider the health, safety, welfare, and best interest of the child in all phases of the process, including interviews with parents, extended family members, counsel for the child, and other interested parties or collateral contacts;
  
• Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist;
  
• Operate within the limits of the evaluator's training and experience and disclose any limitations or bias that would affect the evaluator's ability to conduct the evaluation;
  
• Not pressure children to state a custodial preference;
  
• Inform the parties of the evaluator's reporting requirements, including, but not limited to, suspected child abuse and neglect and threats to harm one's self or another person;
  
• Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;
  
• Disclose to the court, parties, attorney for a party, and attorney for the child conflicts of interest or dual relationships; and not accept any appointment except by court order or the parties' stipulation; and
  
• Be sensitive to the socioeconomic, gender, race, ethnicity, cultural values, religious, family structures, and developmental characteristics of the parties.

Rule 1257.4. Education, experience, and training standards for evaluators
Persons appointed as child custody evaluators must complete forty hours of initial training, as described, by January 1, 2004. Twenty of those hours must be completed by January 1, 2003. Persons appointed as a child custody evaluator must comply with the training requirements described in rule 1257.7; fulfill the experience requirements; and meet the continuing education, experience, and training requirements.

Only education acquired after January 1, 2000 that meets the requirements for training and education providers described above meets the requirements of this rule. Ten hours required by this rule may be earned through self-study that is supervised by a training provider who meets the requirements described above. Serving as the instructor in a course meeting the requirements described above in one or more of the subjects listed in the paragraph below can be substituted for completion of the requisite number of hours specified on an hour-per-hour basis, but each subject taught may be counted only once. The hours required by this rule must include, but are not limited to, all of the following subjects:

The psychological and developmental needs of children, especially as those needs relate to decisions about child custody and visitation; family dynamics, including, but not limited to, parent-child relationships, blended families, and extended family relationships; the effects of separation, divorce, domestic violence, child sexual abuse, child physical or emotional abuse or neglect, substance abuse, and interparental conflict on the psychological and developmental needs of children and adults; the assessment of child sexual abuse issues required by Family Code section 3110.5(b)(2)(A)-(F) and Family Code section 3118; local procedures for handling child sexual abuse cases; and the effect that court procedures may have on the evaluation process when there are allegations of child sexual abuse; the significance of culture and religion in the lives of the parties; safety issues that may arise during the evaluation process and their potential effects on all participants in the evaluation; when and how to interview or assess adults, infants, and children; gather information from collateral sources; collect and assess relevant data; and recognize the limits of data sources' reliability and validity; the importance of addressing issues such as general mental health, medication use, and learning or physical disabilities; the importance of staying current with relevant literature and research; how to apply comparable interview, assessment, and testing procedures that meet generally accepted clinical, forensic, scientific, diagnostic, or medical standards to all parties; when to consult with or involve additional experts or other appropriate persons; how to inform each adult party of the purpose, nature, and method of the evaluation; how to assess parenting capacity and construct effective parenting plans; ethical requirements associated with the child custody evaluator's professional license and rule 1257.3; the legal context within which child custody and visitation issues are decided and additional legal and ethical standards to consider when serving as a child custody evaluator; the importance of understanding relevant distinctions among the roles of evaluator, mediator, and therapist; how to write reports and recommendations, where appropriate; mandatory reporting requirements and limitations on confidentiality; how to prepare for and give court testimony; how to maintain professional neutrality and objectivity when conducting child custody evaluations; and the importance of assessing the health, safety, welfare, and best interest of the child or children involved in the proceedings.

Persons appointed as child custody evaluators must satisfy initial experience requirements by completing or supervising three court-appointed partial or full child custody evaluations including a written or an oral report between January 1, 2000, and July 1, 2003; or conducting six child custody evaluations in consultation with another professional who meets the education, experience, and training requirements of this rule.

Effective January 1, 2004, persons appointed as child custody evaluators must annually attend 8 hours of update training covering subjects described in the initial 40 hours of training. This requirement is in addition to the annual update training described in rule 1257.7 (which is four hours annually in domestic violence.)

A person appointed as a child custody evaluator must:

• Effective January 1, 2004, complete and file with the court Judicial Council form Declaration of Child Custody Evaluator Regarding Qualifications (FL-326). This form must be filed no later than 10 court days after receipt of notification of the appointment and before any work on the child custody evaluation has begun, unless the person is a court-connected employee who must file annually with the court Judicial Council form Declaration of Child Custody Evaluator Regarding Qualifications (FL-326);
  
• At the beginning of the child custody evaluation, inform each adult party of the purpose, nature, and method of the evaluation, and provide information about the evaluator's education, experience, and training;
  
• Use interview, assessment, and testing procedures that are consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards;
  
• Have a license in good standing if licensed at the time of appointment, except as described in Family Code section 3110.5(d);
  
• Be knowledgeable about relevant resources and service providers; and
  
• Prior to undertaking the evaluation or at the first practical moment, inform the court, counsel, and parties of possible or actual multiple roles or conflicts of interest.

Rule 1257.7. Domestic violence training standards for court-appointed child custody investigators and evaluators
Persons appointed as child custody investigators under Family Code section 3110 or Evidence Code section 730, and persons who are professional staff or trainees in a child custody or visitation evaluation or investigation, must complete basic training in domestic violence issues as described in Family Code section 1816 and in addition:

I. Sixteen hours of advanced training shall be completed within a 12-month period.
(A) Twelve hours shall include: the appropriate structuring of the child custody evaluation process, including, but not limited to, maximizing safety for clients, evaluators, and court personnel; maintaining objectivity; providing and gathering balanced information from both parties and controlling for bias; providing for separate sessions at separate times (as specified in Family Code section 3113); and considering the impact of the evaluation report and recommendations with particular attention to the dynamics of domestic violence; the relevant sections of local, state, and federal law or rules; the range, availability, and applicability of domestic violence resources available to victims, including, but not limited to, battered women's shelters, specialized counseling, drug and alcohol counseling, legal advocacy, job training, parenting classes, battered immigrant victims, and welfare exceptions for domestic violence victims; the range, availability, and applicability of domestic violence intervention available to perpetrators, including, but not limited to, arrest, incarceration, probation, applicable Penal Code sections (including Penal Code section 1203.097, which describes certified treatment programs for batterers), drug and alcohol counseling, legal advocacy, job training, and parenting classes; and the unique issues in family and psychological assessment in domestic violence cases, including the following concepts:

The effects of exposure to domestic violence and psychological trauma on children; the relationship between child physical abuse, child sexual abuse, and domestic violence; the differential family dynamics related to parent-child attachments in families with domestic violence; intergenerational transmission of familial violence; and manifestations of post-traumatic stress disorders in children; the nature and extent of domestic violence, and the relationship of gender, class, race, culture, and sexual orientation to domestic violence; current legal, psychosocial, public policy, and mental health research related to the dynamics of family violence, the impact of victimization, the psychology of perpetration, and the dynamics of power and control in battering relationships; the assessment of family history based on the type, severity, and frequency of violence; the impact on parenting abilities of being a victim or perpetrator of domestic violence; the uses and limitations of psychological testing and psychiatric diagnosis in assessing parenting abilities in domestic violence cases; the influence of alcohol and drug use and abuse on the incidence of domestic violence; understanding the dynamics of high-conflict relationships and abuser/victim relationships; the importance of, and procedures for, obtaining collateral information from probation departments, children's protective services, police incident reports, restraining order pleadings, medical records, schools, and other relevant sources; accepted methods for structuring safe and enforceable child custody and parenting plans that assure the health, safety, welfare, and best interest of the child, and safeguards for the parties; and the importance of discouraging participants in child custody matters from blaming victims of domestic violence for the violence and from minimizing allegations of domestic violence, child abuse, or abuse against any family member.

(B) Four hours of community resource networking intended to acquaint the evaluator with domestic violence resources in the geographical communities where the families being evaluated may reside.

II. Four hours of update training are required each year after the year in which the advanced training is completed.
These four hours will consist of in-person classroom instruction focused on, but not limited to, an update of changes or modifications in local court practices, case law, and state and federal legislation related to domestic violence, and an update of current social science research and theory, particularly in regard to the impact on children of exposure to domestic violence.

The pendulum has swung from having no standardized regulations across the state for child custody evaluators to having very detailed regulations. If, for some reason, you find yourself performing evaluations and you do not have some of these requirements met, ask the presiding judge to waive the requirements. The courts are given discretion by Family Code §3110.5 (d) to waive requirements.

Providing a child custody evaluation can be a rewarding but demanding process. In the end, no matter what your recommendation is, at least one party will likely be upset by it. That aggravated party will want his or her attorney to discredit you on cross examination so that your recommendation can be challenged successfully. The attorneys who are cross examining you will be familiar with the above Family Codes and Rules of Court and will use any deviations as weapons against you. Being familiar with the laws of child custody evaluations and using sound clinical practices are your best guarantees of making the right recommendations and having those recommendations withstand the scrutiny of court and
counsel.

This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.