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self-study / Family Law

Mental health professionals in family law

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Lorenzo Patino Hall of Justice (County Main Jail)

Jaime R. Román



Circumstances often require enlistment of mental health professionals. Courts and litigants must consider the requirements of each individual case when deciding whether to enlist the assistance of a mental health professional, and if so, which professional is best suited for the needs of the client or the court. Mental health professionals are often used by courts in numerous settings, including criminal, probate and education law. This article will focus on use of the professionals in the context of family law.

The objective of this article and accompanying test is to examine the use of mental health professionals in family law. Readers will learn about the professionals' requisite general qualifications, the myriad professionals that may be used, use of professionals as mediators, and their utility in providing mental health to minors.

General Qualifications

A person is qualified to testify as an expert in a family law or other case if that person has special knowledge, skill, experience, training or education sufficient to qualify him or her as an expert on the subject to which the testimony relates. Evid. Code Section 720. Whether a person qualifies as an expert in a particular case depends on the facts of that case and the witness' qualifications. In considering whether a person qualifies as an expert, the person's field of expertise must be carefully distinguished and limited by the court. People v. Brown, 96 Cal. App. 4th Supp. 1 (2001). As indicated by Brown, trial courts have wide latitude in determining the qualifications of expert witnesses.

Certain experts generally lend themselves better to particular situations which commonly arise in various areas of law. A court must accordingly determine when it is necessary for courts to appoint a mental health expert, as well as how the testimony of the experts should be utilized by the trier of fact.

Family Law Professionals

Family law involves a wide range of mental health professionals, including family law facilitators (Fam. Code Section 10002), minors' counsel (Fam. Code Sections 3114, 3150, 3184), investigators (Fam. Code Sections 3110, 8543), mediators (Fam. Code Section 3160), conciliation counselors (Fam. Code Section 1815), court-connected child custody evaluators and private custody evaluators (Fam. Code Section 3110.5), evaluative psychotherapists (Evid. Code Section 730), special masters (In re Marriage of Adams, 209 Cal. App. 4th 1543 (2012)), referees (Code of Civ. Proc. Section 638; Fam. Code Section 2336(a)), substance abuse testing monitors (Fam. Code Section 3041.5), and many others.

While many practitioners may have similar credentials, each position carries unique responsibilities and qualifications. Resources permitting, practitioners in specialized practice areas should be selected who can serve both parties' individual needs, particularly those of any minor children who may be involved in the dispute.

Appointment of Investigators and Evaluators

To aid in the determination of the proper award of custody, the court frequently makes use of a court-appointed investigator, who obtains information on the conditions in the home of the party seeking custody and reports to the judge. Under Family Code Sections 3110 et seq., a "court-appointed investigator" means a probation officer, domestic relations investigator, or court-appointed evaluator directed by the court to conduct an investigation. Nothing in these sections "limits the duty of a court-appointed investigator to assist the appointing court in the transaction of the business of the court." Fam. Code Section 3116.

In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct an evaluation when the court determines that to do so is in the child's best interests. Fam. Code Section 3111(a); see also Fam. Code Section 7850 (on order of court, court investigator, etc., must investigate "circumstances" of minor and "circumstances" alleged in a proceeding to declare a minor free from the custody of a parent).

Availability of Mediators

Family Code Section 3160 provides that every superior court shall make a mediator available in matters involving custody and visitation of children. Section 3165 provides that all mediators shall possess the minimum education and experience listed in Section 1815.

Mediation is provided early in a proceeding to help the parents reach their own resolution of the custody/visitation dispute. The primary purposes are to (1) reduce acrimony; (2) develop an agreement, assuring the child closeness and continuing contact with both parents is in the child's best interest, consistent with the Family Code Sections 3011 factors (which include the health, safety and welfare of the child) and 3020 policies (including that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage); and (3) effect a settlement of parties' visitation rights which is in the child's best interest. Fam. Code Section 3161(a)-(c); In re Marriage of Green, 213 Cal. App. 3d 14 (1989).

A mediator may, consistent with local court rules, submit a recommendation to the court, if the mediator has first provided the parties and their attorneys, including counsel for any minor children, with the recommendations in writing in advance of the hearing. Fam. Code Section 3183. A mediator's written report containing custody and/or visitation recommendations must be placed in the confidential portion of the court's file and may only be disclosed to statutorily-specified persons. Fam. Code Section 3025.5.

Recommendations forwarded to the court pursuant to duly adopted written local rules are deemed "significant," given the mediator's special training, education and experience. In re Marriage of Slayton, 86 Cal. App. 4th 653 (2003). However, those recommendations are simply evidence to be weighed with all other evidence in the case; the mediator's recommendations are not binding because the court not the mediator, is charged with deciding the custody/visitation issues. Ibid.

Under Family Code Sections 3170 and 3171 own terms, a court has no discretion to avoid the mediation process; the statutes are not merely "suggestive" of authority to mediate, they compel mandatory custody/visitation mediation. Failure to set the dispute for mediation is a bar to a custody/visitation hearing. Hoversten v. Superior Court, 74 Cal. App. 4th 636 (1999). Similarly, failure to participate in the mediation may estop a recalcitrant parent from being heard on his or her custody/visitation request. In re Marriage of Economou, 224 Cal. App. 3d 1466 (1990).

Communication with Court-Appointed Mediators or Evaluators

Family Code Section 216(a) provides "In the absence of a stipulation by the parties to the contrary, there shall be no ex parte communication between the attorneys for any party to an action and any court-appointed or court-connected evaluator or mediator, or between a court-appointed or court-connected evaluator or mediator and the court, in any proceedings under this Code except with regard to the scheduling of appointments." In addition, "There shall be no ex parte communications between counsel appointed by the court ... and any court-appointed or court-connected evaluator or mediator, except where it is expressly authorized by the court." Fam. Code Section 216(b).

Notwithstanding this rule, counsel appointed to represent a child's best interests may interview mental health professional mediators who have assessed a child or provided care to a child. Fam. Code Sections 216(b), 3151(c)(5). Another exception to the no ex parte communication rule permits a mediator or evaluator to address a case involving allegations of domestic violence. Fam. Code Section 216(c)(1), (2). Ex parte communications are also allowed "If the mediator or evaluator determines that ex parte communication is needed to inform the court of his or her belief that a restraining order is necessary to prevent an imminent risk to the physical safety of the child or the party." Fam. Code Section 216(c)(3).

Court-Ordered Counseling Services

California courts possess the power to order couples to participate in counseling services if doing so serves the best interest of the children. Family Code section 3190 gives a court authority to order counseling, if the dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child. Under this section, the court may require the parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional, or through other community programs and services that provide appropriate counseling. This section applies to a dispute between the parents, between the parent or parents and the child, between the parent or parents and another party seeking custody or visitation rights with the child, and between a party seeking custody or visitation rights and the child.

Consent of Minors to Medical Treatment

Health and Safety Code Section 124260 provides that minors may consent to medical treatment, excluding electroconvulsive therapy, psychosurgery, or psychotropic drugs if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.

Family Code Section 6924 provides in pertinent part,

"(b) A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements are satisfied:

"(1) The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services.

"(2) The minor (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or (B) is the alleged victim of incest or child abuse.

"(c) A professional person offering residential shelter services, whether as an individual or as a representative of an entity specified in paragraph (3) of subdivision (a), shall make his or her best efforts to notify the parent or guardian of the provision of services.

"(d) The mental health treatment or counseling of a minor authorized by this section shall include involvement of the minor's parent or guardian unless, in the opinion of the professional person who is treating or counseling the minor, the involvement would be inappropriate. The professional person who is treating or counseling the minor shall state in the client record whether and when the person attempted to contact the minor's parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the professional person's opinion, it would be inappropriate to contact the minor's parent or guardian."

Freedom from Custodial Parental Custody and Control

Family Code Section 7827 provides that a declaration of freedom from parental custody and control under Family Code Part 4, Division 12 may be granted in the event that one or both parents are mentally disabled and are likely to remain so in the foreseeable future. To make such an order, Family Code Section 7827(c), requires a finding by any two experts, each of whom must be a certified psychiatrist, physician, or psychologist. Harm to the child cannot be presumed from the mere fact of mental illness of the parent. In re Jamie M., 134 Cal. App. 3d 530 (1982). Under In re Jamie M., in order to properly rule, expert testimony is required, giving specific examples of the manner in which the parent's behavior has and will adversely affect the child or jeopardize the child's safety. The evidence must reveal a detriment to the child resulting from the parent's illness before removal is justified. In re Elizabeth R., 35 Cal. App. 4th 1774 (1995).


Ben Armistead

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