Adams v. Jack A.
148 Cal. Rptr. 3d 83
Cal. Ct. App.2012Background
- Father appeals postjudgment order granting mother sole legal custody of J., age 14, amid contentious cross-filing over autism-related treatment and schooling.
- J. has Asperger’s syndrome; mother is an autism advocate and author, father is a special education attorney.
- In 2008 the divorce judgment required use of a designated special master for education/custody disputes; parties shared joint legal custody.
- In 2010–2011 the court ordered a section 730 custody evaluation by Dr. Jimenez; the parties debated his role as evaluator vs. special master.
- Father moved to stay the evaluation and remove Jimenez, alleging bias and overreach; the court denied the removal and allowed the evaluation to continue, later relying on Jimenez’s report to justify sole custody.
- The opinion reverses the custody order, remands for enforcement of the special master provisions and a new ruling on evaluator fees after an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court abuse its discretion by denying removal of the evaluator despite bias evidence? | Father argues Jimenez was biased and outside scope, necessitating removal. | Mother contends evaluator bias was not egregious and removal unnecessary. | Yes; court abused discretion by denying removal due to bias. |
| Was the award of sole legal custody tainted by the biased evaluator’s report and J.’s potentially coached statements? | Father contends bias infected the report and J.’s statements; joint custody should be considered. | Mother contends report was detailed and reliable; custody appropriate. | Yes; bias tainted the custody award. |
| Did the court err by failing to determine reasonable fees for the evaluator and by maintaining the special master provisions? | Father seeks a hearing to fix reasonable fees or remove improper billing; questioned need for ongoing special master. | Mother argues special master provisions were moot with sole custody; fees to be resolved later. | Yes; remand to determine reasonable compensation and allocate fees; enforce special master provisions on remand. |
| Should a new evaluation process be ordered on remand? | Removal and credibility concerns necessitate re-evaluation under proper neutrality. | No new evaluation necessary if proceedings continue with proper safeguards. | Remand for enforcement of special master provisions and a new, neutral process as appropriate. |
Key Cases Cited
- Estate of Dolbeer, 149 Cal. 227 (Cal. 1906) (establishment of disinterested expert review in custody matters)
- Mercury Casualty Co. v. Superior Court, 179 Cal.App.3d 1027 (Cal. Ct. App. 1986) (purpose of section 730 evaluations to provide impartial reports)
- Howard v. Drapkin, 222 Cal.App.3d 843 (Cal. Ct. App. 1990) (impartiality requirement for evaluators in custody matters)
- In re Marriage of Burgess, 13 Cal.4th 25 (Cal. 1996) (custody orders subject to abuse-of-discretion review; evaluator neutrality emphasized)
- In re Daniel C. H., 220 Cal.App.3d 814 (Cal. Ct. App. 1990) (appointment of custody evaluator and standards of neutrality)
- Laurenti, 154 Cal.App.4th 395 (Cal. Ct. App. 2007) (must determine if evaluator should receive compensation and ensure reasonableness of fees)
- Rand v. Board of Psychology, 206 Cal.App.4th 565 (Cal. Ct. App. 2012) (impartiality and appearance of neutrality for specialists in custody matters)
- Seagondollar, 139 Cal.App.4th 1116 (Cal. Ct. App. 2006) (importance of procedural rules to preserve mediator/evaluator neutrality)