Must courts follow a child's wishes?

"To err is human, to forgive, divine" - or, with apologies to Alexander Pope, at least a proper exercise of judicial discretion. On March 27, the 4th District Court of Appeal, Division 1, granted the request of the Association of Certified Family Law Specialists (ACFLS) to publish its opinion in the case of In Re Marriage of Winternitz, 2015 DJDAR 3526 (Feb. 27, 2015). The case is important to family law practitioners (and divorce litigants themselves) for two reasons:

First, the case is one of only a few decisions discussing errors by so-called custody evaluators, psychologists whose opinion on "the best interest of the children" carry a good deal of weight in divorce court. In Winternitz, the Court of Appeal held that the family judge did not abuse his discretion in refusing to strike a custody evaluator's expert report on the grounds of the mistakes made by the evaluator to which he admitted on cross examination, because the errors went to weight, not admissibility.

Second, "the voice of the child" in custody disputes has been given increasing attention in family court in recent years due both to the passage of a law expanding the scope of this "voice" for 14-year-olds, and because the current vogue is to pay closer attention to what children say about custody proposals. Winternitz holds that the family court did not abuse its discretion in deciding not to follow the young daughter's wish to remain in her mother's care in a planned relocation by her mom despite Family Code Section 3042.

The important facts are these. The parents married in 1985 and separated in 2001, shortly after the birth of Jamison, the youngest of three girls. The marriage was dissolved in Yolo County in 2004.

In a post-judgment proceeding concerning mom's wish to move from Yolo County to San Diego, the family court appointed a custody evaluator to weigh in on whether primary physical custody should switch from mom, who had the children the bulk of the time, to dad, an orthopedic surgeon, if mom moved to San Diego. In family court, a custody evaluator is appointed as an expert of the court under Evidence Code Section 730, and must abide by California Rules of Court, Rule 5.220, three and a half pages of guidance concerning the responsibility for evaluations, the scope of the evaluation and other specifics. The trier of fact need not accept the evaluator's recommendations, but in practical application often does.

Custody evaluator number one recommended that the mother be allowed to move from Yolo County to San Diego with the children, despite his finding that mom had alienated the children from dad. The family judge ruled in accordance with this recommendation. After mom moved to San Diego with the children, dad relocated there as well and re-established his orthopedic surgery practice there.

The Winternitz opinion concerns mom's second request to move with Jamison, the only minor then living with the parents, the children, this time filed in San Diego County Superior Court, seeking an order to allow her to move to Chico, in Northern California, where she had purchased a home. This time she sought to move because she had reconnected with a friend to whom she was engaged. The fiance's job was in Chico and mom was unable to find a job in San Diego. In turn, dad moved to modify custody, seeking physical custody of Jamison.

Custody evaluation number two ensued. The evaluator submitted his report recommending that if mom moved then Jamison should be placed with dad. The evaluator's investigation included 14 hours of interviews with dad, and 20 hours of interviews with mom, interviews with Jamison herself, the two other children, mom's fiancÃ(C), and mom's younger sister. Nonetheless, the evaluator ran afoul of several precepts of Rule 5.220, including his failure to produce documents or take adequate notes of the interviews. The evaluator admitted making mistakes in the case and mom's counsel cross examined him at length during the trial concerning his conclusions and his impartiality.

Considering the evaluator's report, hearing testimony and argument from counsel, the family court denied mom's request to move with Jamison and changed primary custody of Jamison to dad. The family court found that dad met his burden of showing that the planned move would cause substantial detriment to Jamison. The trial court rebuffed mother's attempt to strike the evaluator's report on the basis that the evaluator failed to comply with Rule 5.220. The trial court concluded that mom's objections to the report went to the weight of the report, not to its admissibility.

The Court of Appeal agreed, reviewing the trial court's ruling on the admissibility of proper evidence for an abuse of discretion.

The important lesson is this: Appellate courts do not second-guess evidentiary assessments unless there is prejudicial error resulting in a miscarriage of justice. In re Marriage of Steiner and Hosseini, 117 Cal. App. 4th 519, 526 (2004) (citing article VI, section 13 of our state Constitution providing that no judgment may be set aside unless there has been a miscarriage of justice). As the ACLFS' letter to Court of Appeals seeking publication states: "just as there are no perfect trials, there are no perfect custody evaluations."

This holding in Winternitz is important because it provides an example of when an evaluator's report need not be stricken. The prior two controlling Court of Appeal cases on the subject addressed the opposite circumstance; namely, when a report should be stricken. More particularly, the appellate court in In re Marriage of Adams & A., 209 Cal. App. 4th 1543 (2012), reversed a trial court's refusal to remove the evaluator when it was undisputed that he evaluator demonstrated bias.

In Leslie O. v. Superior Court, 231 Cal. App. 4th 1191 (2014), the appellate court determined that the evaluator stepped outside her role as evaluator to advocate against the mother and help the father. The appellate court issued a peremptory writ of mandate commanding the trial court to issue an order granting mother's request to disqualify the evaluator and strike and her evaluations.

Winternitz is useful for a guidance on a second holding, namely that family courts are not mandated to follow custody wishes of children despite Family Code Section 3042. That section requires the Court to consider and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason as to form an intelligent preference as to custody or visitation." Even though Jamison had expressed a desire to move away with her mother, she was not called as a witness because both sides agreed what her testimony would be. That the family court did not follow Jamison's wishes did not establish an abuse of discretion, as it was clear that it had given "due weight" to those wishes. Thus, even though this state and others are increasingly concerned to respect the wishes of children old enough to articulate them, this case is the latest in a line of cases in which the refusal of a family judge to rule in accordance with those wishes was upheld.