Tuesday, January 13, 2009

Family court does not want reasons in assessments

This order is posted in the family court:

The second sentence in Family Division Local Rule 2.C.(3)a. was inadvertently not deleted in revisions effective January 1, 2008, and therefore will be deemed deleted effective immediately. The sentence reads as follows: "An assessment shall provide, in addition to the recommended orders, a brief statement setting forth the reasons for the recommendation that are being made."
Dated: February 5, 2008

Hon. Patricia M. Lucas
Judge of the Superior Court
Confusing? Let me explain. When a family court judge has trouble justifying a child custody action, he farms it out to a shrink to do his dirty work. The shrink interviews the parties, writes a report about the situation, and makes a child custody recommendation. The judge then accepts that recommendation as an expert opinion.

Apparently the rules once had the sensible requirement that an assessment should explain the reasons for the recommendation. In a legitimate assessment, that explanation is the heart of the expert opinion.

The problem is that if the assessment includes the reasons for its conclusions, then the parties to the case are able to challenge it. For example, if the reason is an unverified accusation of domestic violence, then someone could try to prove that the accusation is false. If the reason is that Russians are crazy people, then the prejudice could be challenged in court.

The Santa Clara court not only removed the requirement for an assessment to state reasons for its recommendation, it issued an order that makes it clear that the court really does not want those reasons. Having the reasons in writing makes it too easy for someone to contest a faulty assessment.

This is completely contrary to the way the law is supposed to work. If you were in an ordinary lawsuit for damages in a car accident or any other matter, the judge would never permit an expert witness to testify about how much money ought to be paid without giving detailed reasoning explaining every dollar. It is the duty of the fact witnesses to state facts, the duty of the expert witness to give reasoning, and the duty of the judge and jury to make conclusions.

The family court makes a mockery of this procedure. Instead of deciding legal disputes in court as it is supposed to, it uses shrinks who can violate all the rules of evidence and make the decisions out of court. The above order shows how corrupt the process is.


Anonymous said...

I'm confused. Rule 2C(3)(a)as of January 1, 2009 contrasts a custody evaluation with an assessment. It concerns the setting of hearings, and includes the statement "The court orders an evaluation only when it determines that a full report is needed." You appear to be looking at old rules that have been re-written Prehaps the deletion is because the issue is handled elsewhere in the revised rules. Try looking at the 2009 version and look at the whole of rule 2 for your issue.

George said...

I provided a link to the current rules. The sentence about giving reasons for recommendations has indeed been deleted. You can check the court's web site for yourself, if you don't believe it. The court does not want reasons in assessments.