Benner: Child Custody, Child Custody Evaluator

In re Marriage of Benner (Child Custody; Child Custody Evaluator)

California Court of Appeal, Fourth District

Published Opinion, (2019) 36 Cal.App.5th 177

File Date:
Filed 6-12-2019

The family court appointed a child custody evaluator per Evidence Code section 730 on a post-judgment motion to modify child custody. The evaluator produced a report that was deficient and of no value in assisting the court on an appropriate parenting plan. The family court ordered the evaluator to refund all of the expert fees. The family court set that order aside and joined the evaluator into the divorce action without a motion for joinder.

When the evaluator objected, the court quashed the joinder and order the former wife in the divorce action to file a motion for joinder of the evaluator. The motion was filed, seeking an order for repayment of the expert’s fees. The evaluator filed a special motion to strike the petition pursuant to the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The family court denied that motion. The appellate court agreed that the anti-SLAPP motion was properly denied but held that it was error to join the evaluator into the divorce action because there was a procedure to determine the reasonableness of the fees without making the evaluator a party to the divorce case.

Benner 6-12-19

The case listed here was not handled by Walzer Melcher unless the description states that Walzer Melcher appeared as counsel.