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California Family Code Section 3118

Legal Research Home > California Laws > Family Code > California Family Code Section 3118

3118.  (a) In any contested proceeding involving child custody or
visitation rights, where the court has appointed a child custody
evaluator or has referred a case for a full or partial
court-connected evaluation, investigation, or assessment, and the
court determines that there is a serious allegation of child sexual
abuse, the court shall require an evaluation, investigation, or
assessment pursuant to this section. When the court has determined
that there is a serious allegation of child sexual abuse, any child
custody evaluation, investigation, or assessment conducted subsequent
to that determination shall be considered by the court only if the
evaluation, investigation, or assessment is conducted in accordance
with the minimum requirements set forth in this section in
determining custody or visitation rights, except as specified in
paragraph (1). For purposes of this section, a serious allegation of
child sexual abuse means an allegation of child sexual abuse, as
defined in Section 11165.1 of the Penal Code, that is based in whole
or in part on statements made by the child to law enforcement, a
child welfare services agency investigator, any person required by
statute to report suspected child abuse, or any other court-appointed
personnel, or that is supported by substantial independent
corroboration as provided for in subdivision (b) of Section 3011.
When an allegation of child abuse arises in any other circumstances
in any proceeding involving child custody or visitation rights, the
court may require an evaluator or investigator to conduct an
evaluation, investigation, or assessment pursuant to this section.
The order appointing a child custody evaluator or investigator
pursuant to this section shall provide that the evaluator or
investigator have access to all juvenile court records pertaining to
the child who is the subject of the evaluation, investigation, or
assessment. The order shall also provide that any juvenile court
records or information gained from those records remain confidential
and shall only be released as specified in Section 3111.
   (1) This section does not apply to any emergency court-ordered
partial investigation that is conducted for the purpose of assisting
the court in determining what immediate temporary orders may be
necessary to protect and meet the immediate needs of a child. This
section does apply when the emergency is resolved and the court is
considering permanent child custody or visitation orders.
   (2) This section does not prohibit a court from considering
evidence relevant to determining the safety and protection needs of
the child.
   (3) Any evaluation, investigation, or assessment conducted
pursuant to this section shall be conducted by an evaluator or
investigator who meets the qualifications set forth in Section
3110.5.
   (b) The evaluator or investigator shall, at a minimum, do all of
the following:
   (1) Consult with the agency providing child welfare services and
law enforcement regarding the allegations of child sexual abuse, and
obtain recommendations from these professionals regarding the child's
safety and the child's need for protection.
   (2) Review and summarize the child welfare services agency file.
No document contained in the child welfare services agency file may
be photocopied, but a summary of the information in the file,
including statements made by the children and the parents, and the
recommendations made or anticipated to be made by the child welfare
services agency to the juvenile court, may be recorded by the
evaluator or investigator, except for the identity of the reporting
party. The evaluator's or investigator's notes summarizing the child
welfare services agency information shall be stored in a file
separate from the evaluator's or investigator's file and may only be
released to either party under order of the court.
   (3) Obtain from a law enforcement investigator all available
information obtained from criminal background checks of the parents
and any suspected perpetrator that is not a parent, including
information regarding child abuse, domestic violence, or substance
abuse.
   (4) Review the results of a multidisciplinary child interview team
(hereafter MDIT) interview if available, or if not, or if the
evaluator or investigator believes the MDIT interview is inadequate
for purposes of the evaluation, investigation, or assessment,
interview the child or request an MDIT interview, and shall wherever
possible avoid repeated interviews of the child.
   (5) Request a forensic medical examination of the child from the
appropriate agency, or include in the report required by paragraph
(6) a written statement explaining why the examination is not needed.
   (6) File a confidential written report with the clerk of the court
in which the custody hearing will be conducted and which shall be
served on the parties or their attorneys at least 10 days prior to
the hearing. This report may not be made available other than as
provided in this subdivision. This report shall include, but is not
limited to, the following:
   (A) Documentation of material interviews, including any MDIT
interview of the child or the evaluator or investigator, written
documentation of interviews with both parents by the evaluator or
investigator, and interviews with other witnesses who provided
relevant information.
   (B) A summary of any law enforcement investigator's investigation,
including information obtained from the criminal background check of
the parents and any suspected perpetrator that is not a parent,
including information regarding child abuse, domestic violence, or
substance abuse.
   (C) Relevant background material, including, but not limited to, a
summary of a written report from any therapist treating the child
for suspected child sexual abuse, excluding any communication subject
to Section 1014 of the Evidence Code, reports from other
professionals, and the results of any forensic medical examination
and any other medical examination or treatment that could help
establish or disprove whether the child has been the victim of sexual
abuse.
   (D) The written recommendations of the evaluator or investigator
regarding the therapeutic needs of the child and how to ensure the
safety of the child.
   (E) A summary of the following information: whether the child and
his or her parents are or have been the subject of a child abuse
investigation and the disposition of that investigation; the name,
location, and telephone number of the children's services worker; the
status of the investigation and the recommendations made or
anticipated to be made regarding the child's safety; and any
dependency court orders or findings that might have a bearing on the
custody dispute.
   (F) Any information regarding the presence of domestic violence or
substance abuse in the family that has been obtained from a child
protective agency in accordance with paragraphs (1) and (2), a law
enforcement agency, medical personnel or records, prior or currently
treating therapists, excluding any communication subject to Section
1014 of the Evidence Code, or from interviews conducted or reviewed
for this evaluation, investigation, or assessment.
   (G) Which, if any, family members are known to have been deemed
eligible for assistance from the Victims of Crime Program due to
child abuse or domestic violence.
   (H) Any other information the evaluator or investigator believes
would be helpful to the court in determining what is in the best
interests of the child.
   (c) If the evaluator or investigator obtains information as part
of a family court mediation, that information shall be maintained in
the family court file, which is not subject to subpoena by either
party. If, however, the members of the family are the subject of an
ongoing child welfare services investigation, or the evaluator or
investigator has made a child welfare services referral, the
evaluator or investigator shall so inform the family law judicial
officer in writing and this information shall become part of the
family law file. This subdivision may not be construed to authorize
or require a mediator to disclose any information not otherwise
authorized or required by law to be disclosed.
   (d) In accordance with subdivision (d) of Section 11167 of the
Penal Code, the evaluator or investigator may not disclose any
information regarding the identity of any person making a report of
suspected child abuse. Nothing in this section is intended to limit
any disclosure of information by any agency that is otherwise
required by law or court order.
   (e) The evaluation, investigation, or assessment standards set
forth in this section represent minimum requirements of evaluation
and the court shall order further evaluation beyond these minimum
requirements when necessary to determine the safety needs of the
child.
   (f) If the court orders an evaluation, investigation, or
assessment pursuant to this section, the court shall consider whether
the best interests of the child require that a temporary order be
issued that limits visitation with the parent against whom the
allegations have been made to situations in which a third person
specified by the court is present or whether visitation will be
suspended or denied in accordance with Section 3011.
   (g) An evaluation, investigation, or assessment pursuant to this
section shall be suspended if a petition is filed to declare the
child a dependent child of the juvenile court pursuant to Section 300
of the Welfare and Institutions Code, and all information gathered
by the evaluator or investigator shall be made available to the
juvenile court.
   (h) This section may not be construed to authorize a court to
issue any orders in a proceeding pursuant to this division regarding
custody or visitation with respect to a minor child who is the
subject of a dependency hearing in juvenile court or to otherwise
supersede Section 302 of the Welfare and Institutions Code.




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Last modified: March 17, 2014