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What is a 730 Evaluation?
The term 730 Evaluation
refers to Evidence Code Section §730, which authorizes the Court to appoint
an expert to make recommendations which will assist the Court in making a
decision regarding a particular issue that is beyond the Court's experience. In
the Family Law context it refers to the appointment of someone to conduct a "Child Custody Evaluation." In
theory, this procedure is designed to assist the Court in making a
determination of what is in the best interest of your children regarding custody
and visitation.
Should I Even Be Doing This?
Now that's a very good question.
Unfortunately not many people ask it before they get involved in one. The one
complaint that I hear from men who sign up for a 730 is how much it costs. They ask,
"Can't the judge just rule on custody and visitation without all the
B.S." The answer is "No." There is no way
that a judge can know what is in the best interests of the children by merely
reading the declarations of the parties. Judges who do rule without the
benefit of a E.C. §730 evaluation are really flying blind. Which means if the
ruling benefits you, you will think that the judge is Solomon, if the ruling
goes against you, you will think the judge is an idiot. This outcome is rare,
because judges have been conditioned to
pass off the responsibility to the Psychologists. So what does that mean to you?
Basically it means that you are
involved in the single most expensive procedure that you can imagine in the
family law field. I see people delude themselves that they can do this on
a shoestring budget. If you cannot afford to make this procedure the single most
important thing in your life, simply don't start one. A 730 evaluation is like
holding a wildcat by the tail, it is very easy to start all you have to do is
just grab his
tail. But the tricky part is knowing how to turn him loose without losing your arm in the
process. If what you really want is to pay less child support, be up front
about it, because that is not a good reason to put everyone, especially the
children, through a 730
evaluation.
If you start the process and want to
quit because it's too expensive, or it's too time consuming, you may end up
worse off than if you hadn't started it in the first place. In my opinion,
you should never start a 730 evaluation without enough money to complete the
entire process and without retaining an experienced family law attorney with
experience with 730's. If you don't heed my advice, then don't cry and whine if
you get into trouble. You should also know that if you make a mess out of
it, you cannot expect an attorney to come to the process after you have screwed
it up and expect them to save your butt. You only get one chance to do this
right, if you make a mistake you are out of luck. That is also a reality.
This is a very complicated area of
law which is not given to a short explanation. As a result this section is
extremely long. There are also several different types of E.C. §730
evaluations. Each type has its strong points and
its weaknesses. I will try and give you an overview of all
three types, however before you actually commence a 730 evaluation, please
retain the services of a qualified family law attorney to assist you.
The Mini-Evaluation:
The Mini or Fast Track evaluation is the quickest and
cheapest evaluation. It is carried out by the Family Court Services division of
the Superior Court and can be done for a few hundred dollars. The costs are
usually split between the parents.
Typically, on the day of the
evaluation, the family arrives at the Courthouse around 8:00 A.M. for a series
of interviews with the evaluator. The evaluator will interview both
parents, the children (if old enough), and any other documents or witnesses
(collateral sources) the parties may want to bring. The evaluation will
continue until around noon.
During the lunch
break, the evaluator will collect their notes and prepare for the actual hearing
around 1:30 P.M. in the afternoon. When Court resumes the evaluator will take
the witness stand to render their opinion. They may be asked questions by each
lawyer and the judge concerning their opinion. At the conclusion of the hearing
the judge will render a decision on custody and visitation.
This evaluation is
best for cases that don't involve complex issues, many witnesses, and/or
psychological issues. If the other party is a walking textbook case of
psychosis's and neurosis's this is the wrong procedure to use.
The Basic Child Custody Evaluation:
The Child custody evaluation is the next step up the ladder
in thoroughness and costs. Typically this evaluation is also conducted by
Family Court Services and involves more complex cases. However, it doesn't
involve psychological testing or maximum thoroughness. The costs for one child
is around $1,000.00, with an incremental step up for each additional child. This
type of evaluation is suppose to take from 8 weeks to a year to complete.
Lately these have been taking almost a year just to get one started.
If speed is a
major concern, this evaluation is probably not the best choice. Typically the
evaluator likes to interview each parent, child and collateral source that the
parent feels will assist the evaluator in understanding the issues of the case.
It is very common for the evaluator to make a home visit with each parent. This
allows the evaluator to observe the interaction of each parent and child in as
natural a setting as possible.
The Private Custody or Psychological Evaluation:
The Private Custody or Psychological Evaluation is the
Cadillac of Child Custody Evaluations. It is usually performed by a Mental
Health Professional such as a psychologist, psychiatrist, or Marriage and Family
Therapist. It is the most extensive of all the evaluations and usually costs at
least $5,000.00 and can run upwards of from $8,000.00 to as much as $10,000.00
just for the evaluators fee. The Court maintains a list of approved evaluators,
who have committed to completing the process within 10 weeks. Although this
timetable is not set in stone.
Especially if the evaluator
decides to do psychological testing of the parties and the children in order to
get a handle on the dynamics of the family situation. This procedure can easily
exceed the 10 week commitment.
As part of the
testing, the parties will be given written tests to complete. The evaluator will
usually have a series of meeting with the parents individually and the parents
and children together at the evaluators office. While it is unusual for the
evaluator to conduct in home meetings, that is not to say they will never do so.
They may also do drug testing if drug or alcohol abuse is in issue. While this
is the most comprehensive evaluation, it is also the hardest to rebut.
Picking the Evaluator:
Picking the evaluator can by the single most important
thing that you do. Most of the time attorneys will exchange information about
the evaluator panels amongst themselves. From this information you pick who you
believe will give you the best result. Attorneys feel that certain evaluators
have biases toward the man or the woman. They will usually try and select
doctors that favor their client. In my opinion, I don't have much faith in
these old wives tales. Most doctors are fair and in the many years that I have
been practicing I have only had two occasions where the evaluator was
guilty of malfeasance by actually being biased against my client.
Each attorney tries to steer
the evaluation toward an evaluator that the attorney thinks will favor his or
her client. A WORD of CAUTION: This is not always reliable. Just
because the evaluator sided with your attorney's client in the last custody
evaluation,
doesn't mean they will side with them again. The reality is that it can be a
crap shoot and you have to be willing to accept that risk. If custody is in
issue, then you should ask your attorney to check with local colleagues about
the evaluators. Hopefully you will pick one that will be fair, although
there is no guarantee.
A Guarantee of a Favorable Outcome?
The best guarantee
of a favorable outcome is through preparation. Preparing for an evaluation
is not rocket science. The problem is that many clients are unwilling to listen
to their attorney's advice. If you hope to have a favorable outcome, then you
must listen to your attorney's advice and try as hard as possible to follow it.
Following are a few tips that I think will help in getting a favorable outcome.
-
Offer to advance the entire cost of the evaluation. This has certain side
benefits, such as it demonstrates that money is "NOT" what is
driving the request for an evaluation.
-
It gives you more leverage in picking the evaluator.
-
Lastly, it gives you the opportunity to
schedule the initial interviews. You'll want to do this so you can schedule
your interview before the other party. It sets allows you to set the agenda
and forces the other side to be responsive.
What the Evaluator Will Want From You:
The
evaluator will have you fill out a Parenting Form as part of the intake process.
This form is very lengthy and If at all possible have the form typed up so that
it is very readable. You have to remember that you are dealing with a "Mental Health Professional" who is going to read things into each and everything that you
do. So let your spouse be the one who turns in a messy form full of erasures,
corrections or scribbling. Believe it or not details matter, and neatness
says a lot about you as a person and parent.
Be candid, but stick to recounting accurate
facts that you can actually prove. If you state something as a fact that you
can't prove it makes you look like a liar. Do not make accusations of physical
abuse, sexual abuse or similar such things without absolute concrete
proof.
Keep a professional detached tone. Try and
not blame everything on your spouse or use hypercritical or sarcastic
comments, even if they would be literally true.
If you have a reasonable suspicion of a
problem such as drug or alcohol abuse, but have no proof, be
absolutely clear. State your reasons for the suspicions and try to make them sound
reasonable. Have someone neutral read your answers, if they
don't believe them, then delete it. Make sure that your attorney reads
your answers BEFORE you send them to the evaluator.
Make sure that each and every answer is complete. If you reference
documents, be sure and attach the document for the evaluator. If you were
smart and kept a diary of events, be sure and include a copy.
Make copies of everything and give one to your lawyer, before you send it
in. Ask your lawyer to review the document and then have them call you to
discuss the document. You don't want your lawyer to see this document for
the first time, when it presented in Court by the opposing counsel. So
think ahead.
How to Organize the Material:
For extra brownie points, put all the documents
together in a folder and tab the sections to correspond with the table of
contents. Yes that means that you need a table of contents. Assemble a
list of Collateral Contacts that you want the evaluator to talk to. Be sure and
include the persons name and phone number, their relationship to you and a brief
description of what they will say. Where appropriate, include photographs,
report cards, police reports, pleadings, letters notes, e-mails and anything
else that will help support your position. Remember you are only going to get
one shot at this, so it is in your best interests to do the best job you can.
The Office Conference & Interview:
Each Evaluator has their own particular method of conducting
the interview, they may ask about your childhood, your parents, your sex
life or even how your potty training went. They may discuss how you met your
spouse, your parenting styles, sharing of chores and child care. Above all be
honest and open. If you lie, it will come out. Don't challenge the
evaluator on each question it won't help. Even if you find the question
offensive, be cool and calm, and answer it. The evaluator may be testing to see
how you react to pressure or stress.
I'll
share a little secret. Guess who will more likely than not cause you to be caught
red-handed in a lie? "Answer - your kids." I have seen more people tripped up by their children than
anyone or anything else. I have heard stories of kids blurting out to the evaluator "my
daddy told me to tell you that I want to live with him." Kids
tend to tell the absolute unvarnished truth, so remember that. Because if
you do something like this you might as well not waste your money on an
evaluation.
Try and be interviewed first. Evaluators are people and since we all tend to develop
opinions or impressions early on. So the person who get there "firstest
with the mostest does the winning." Especially if you have
something in your background that is negative. It is far better coming from you
first than the evaluator hearing it from your spouse and you having to explain
it later on. Be careful to also avoid bad-mouthing your spouse. If you have to
say something negative, do so reluctantly and above all be truthful. Resist the
temptation to embellish the truth. If anything make the evaluator want to hear
more, make them dig it out of you. If the evidence is there, point them towards
it, tell them what they are likely to find and let them discover it.
Your Parenting Plan:
Before you go to the interview have a written
out plan for custody and visitation to discuss with the evaluator. Be prepared
to substantiate your plan with reasons for each and every single one of your
suggestions. Make sure your reasons make sense. For example, if you and your
ex-spouse live 60 miles apart, a mid week visit might not be feasible. If you
and your spouse have a high conflicts case, expecting to be able to effectively
co-parent is probably not realistic.
-
Don't get hung up on labels.
The term "Primary Physical Custody" is an example of
a label, it is not a parenting plan. Discuss actual time sharing and
not labels. Do not disrupt the children by suggesting a major change in what
you are currently doing ("the Status Quo") without an
"extremely"
good
reason. The fact that you are paying the "bitch" child
support is not considered an "extremely"
good
reason.
-
Never ever suggest splitting up
the children. Minor children need the company of their siblings as much as
they need their parents. Courts are loath to split up children. If you have
children from different fathers or mothers, be sensitive to the fact that
the children see their brothers and sisters as their siblings. If your
plan separates one sibling from another because you are unwilling to
recognize the fact that the children are not 100% genetically related, the
evaluator is going to not be happy with your plan. There are
two exceptions to this rule. (1) Both of the parents agree on this situation (2)
Sometimes older children require special situations. For example, one
child has hurt the other or has mental or substance abuse problems and poses
a risk to the other children.
-
Be sure and tell the evaluator
that you understand and want the children to have "frequent
continuing contact" with both parents and related siblings
from unrelated parents (i.e. half-siblings.). Be sure and tell the
evaluator that you are not divorcing the children and want to have contact
with all of them. A separate reason to include half-siblings is self
serving. The children play and entertain each other, which is especially
important with very young children.
-
If you did something that
you now regret, such as leaving the marriage without the children. Be
perfectly candid when you explain the reasons for your actions to the
evaluator. Obviously this is not a good situation, but your honesty as to
why you left the children behind is the best approach to take. You should be
aware that it is not an unusual situation when one spouse has emotionally or
physically abused the other. On the other hand, you should never make up
stories of abuse that are untrue. Above all else, don't lie.
-
Be realistic and recognize the
reality of the situation. You should remember that the evaluator is
not going to recommend an unrealistic parenting plan. For example,
if you only want to spend 2 to 3 hours a week with the children, don't
ask for primary physical custody. It makes you look stupid or worse. As
does mid-week visits when you live one hundred miles away.
-
Some attorneys counsel
mentioning negative things like abortions, affairs and shacking up. I would be very careful before
bring up something as controversial as an abortion. It could backfire on you
big time, especially if it was long ago or before you two married.
Remember that not everyone is against abortion or extremely religious. Unfortunately
shacking up and having an affair is not going to shock the Court. In
fact the Court may not believe it. Unless you have slam dunk proof, you
probably should leave it alone.
-
The evaluator may ask you about
who cares for the children when they are sick. Be honest. If you never took
care of them say so, because the children will and you will look like a
liar. Most parents forget that children are brutally honest and if
asked a question by the evaluator they will answer it honestly.
-
Never suggest that the
children do a particular activity that encroaches on the other parent's
time. Examples of this would be sports, dance, piano or music lessons,
karate, tutoring or even visits with their friends. I don't care if the
activity would be the most beneficial thing in the world, the time with the
child's parent is more important.
-
Check out the neighborhood
schools where you live and see how they score statewide. While you are at
it, check out the school's in the other party's neighborhood. If there is a
disparity that favors the other party, you may consider moving to rectify
the situation. If you do decide to move do so before you start the
evaluation process. This gives you the advantage of already being in a good
school district instead of saying, "I'll move if I get custody."
Go the extra mile and be prepared.
Be aware that I have only
scratched the surface of the 730 evaluation process. Done correctly it is a lot
of work. Done poorly, it will haunt you forever. There are so many
pitfalls and traps in a 730 evaluation that we always try to do a
mock evaluation with our clients.
Above all else, before committing to this plan of action be
sure that you completely understand every aspect of the process and that you are
ready to do it. Both parents have their strength and weaknesses, if you are
really not committed to parenting your children on a daily basis, asking for
primary physical custody, especially if you are really trying to get out of
paying child support, is just plain stupid. Don't do it.
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