I Want a Refund! Appellate Courts Are Challenging Expert Fees

I paid thousands of dollars for that?!” Every family law attorney is familiar with Evidence Code section 730 and child custody evaluations performed by expert psychologists or psychiatrists. In a hotly-contested custody matter, the court-appointed expert can help give the court experienced and expert insight regarding what custody arrangements are in the best interest of the children.

The resulting report is not always favorable for one of the parties. Most of the time, the experts do their jobs well and present unbiased, well-reasoned reports of thorough investigations into the family at issue.

But sometimes, for whatever reason, an expert will present a report that demonstrates significant procedural defects, poor analysis or even blatant bias, which makes the report of not much use in helping the court make its orders. The recently published case of In re Marriage of Benner, filed on June 12, 2019 and certified for publication by Division One of the Fourth Appellate District, involves one of those reports.

Case Background

A child custody expert appointed pursuant to Evidence Code section 730, Dr. Kachorek, prepared and filed with the San Diego County Superior Court a report which the trial court found failed to meet the standards set by California rules and the order of the court in four critical respects. [1] First, it was done pursuant to his own protocols, which were not fully disclosed to the parties or authorized by the court. Second, he failed to gather information about the parties in a fair and balanced manner. Third, he failed to obtain relevant information from professionals about the parties and children which may have countered negative information about the mother which he focused on in his report. Fourth, he failed to control for bias in his recommendations. The result was a report the court found had no value.

In issuing an order excluding the report from evidence, the trial court assessed the reasonableness of the expert’s fees, ruling that the value of his report was $0. This order was later set aside, as the expert had not participated in the hearing. As part of the hearing setting aside that order, the court ordered that the expert would be joined to the action as a party. Dr. Kachorek then filed a motion to quash the joinder, which was granted, and the mother was ordered to serve a formal summons and petition on the expert. She did so, and Dr. Kachorek filed an anti-SLAPP motion, which was denied. This opinion is the result of Dr. Kachorek’s appeal of that order denying his anti-SLAPP motion.

The appellate court held that the denial of the anti-SLAPP motion was proper, as the motion for joinder was not actually a claim being made by the mother against the expert, as the determination of the reasonableness of the expert fees lies within the authority of the trial court, and the mother was simply asking the court to set his compensation by virtue of section 730.

Unusual Steps Taken by the Appellate Court

The appellate court then took the unusual step of going beyond the bare question on appeal, and acknowledged that this matter would be remanded, and that there was no direction on what procedure is appropriate for challenging the fees of an expert appointed under section 730. This, we think, is the importance of this opinion.

The court stated that because the expert’s fees are already within the jurisdiction of the trial court, by virtue of the appointment under section 730, he does not need to be joined to the action as a party. His interest in the fees is ancillary to the action. However, due process does require notice to him. The court held that due process would be satisfied simply by reasonable notice and an opportunity to be heard. The appellate court directed the trial court to issue an order affording the parents and the expert notice of the court’s intent to hold an evidentiary hearing regarding whether the expert was to repay to the parties the fees he had received pursuant to his appointment as an expert under Evidence Code section 730.

What Does This Mean Moving Forward?

We hope the effect of this opinion is that child custody experts will recognize that there is now a clear procedure for a party being refunded his or her expert fees, and that they continue to ensure that their investigations and reports continue to meet the appropriate standards under California law.

[1] These are enumerated in footnote 6 of the Opinion.

About the author

Ron Funk is a California State Bar Certified Appellate Law Specialist who practices family law. He handles cases throughout California.

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