California Evidence Code Section 730
A 730 evaluation is an in-depth analysis of a disputed and complex legal issue which is conducted by an unbiased expert in the field related to the legal dispute. The evaluation is a court appointed expert’s assessment. This assessment takes place so that court appointed expert can provide an opinion and recommendation to the Court. A 730 evaluator is the Court’s appointed expert and is not hired by either party. The recommendation may be used to assist the judge in making proper findings and orders related to that legal dispute.
Evidence Code 730 states:
When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court. Nothing in this section shall be construed to permit a person to perform any act for which a license is required unless the person holds the appropriate license to lawfully perform that act.
The family court typically uses a 730 evaluation when one or more divorce issues are complex enough to needs an expert’s opinion. The judge may order a 730 evaluation at the beginning of the case, in the middle or toward the end. The Family Court can even order one during trial.
Court Appointed Forensic Accountant
Cash Flow: A forensic accountant can perform a 730 evaluation on financial related issues. The evaluation may include an examination of income available for child, spousal and family support. This is sometimes called “cash flow.” This is usually relevant for those who are self-employed. However, income available for support is not limited to employment income. Such a 730 evaluation may include passive or investment income.
Business Valuation: If one or both spouses are self- employed, one question may be whether that business is community property. A business is like any other asset and may be community property, separate property, or a combination of the two.
Tracing: A forensic accounting 730 evaluation may include “tracing” analysis. It will involve tracing money backward in time. This tracing can serve purposes such as:
- To determine whether separate or community property money was invested into an asset, which could impact whether that asset is community or separate property. One example of this may be a Family Code 2640 claim when one or both spouses placed a down-payment on a home from a separate source.
- To determine whether community property money was misappropriated.
- To determine whether community and separate property was commingled.
Child Custody Evaluator
Child Custody Dispute: In a child custody dispute, a psychologist (730 evaluator) may be appointed to analyze a person’s mental status as it relates to that person’s ability to take care of his or her child. The psychologist will prepare a recommendation for the judge so that the judge may better understand the person’s mental status as it relates to his or her ability to take legal custody and/or physical custody of his or her child.
The court is not required to adopt the report since in child custody cases, the court is required to make orders that are in the best interest of the child and may conclude that the recommendations are not consistent with this mandate.
Choosing the 730 Court Appointed Expert
The court usually appoints a 730 evaluator from a court-approved list or parties can agree (stipulate), to the person. The judge cannot appoint a person who is not a licensed expert. The 730 evaluator in child custody case are usually a psychologist or licensed therapist. Psychologist and licensed therapist are mandated reporters of suspected child abuse and/or child neglect. This means that a psychologist or licensed therapist who serves as a 730 evaluator, and suspects child abuse or child neglect has occurred, must report that suspicion to both the court and law enforcement.
Confidential Report: The 730 evaluator maintains confidentiality until the recommendation is filed with the court. However, once the recommendation is made available to the court, the court usually makes that recommendation available to the parties or their respective attorneys to allow the parties to argue against or for the recommendation.
Challenging the Report?
Evidence Code 733 states:
Nothing contained in this article shall be deemed or construed to prevent any party to any action from producing other expert evidence on the same fact or matter mentioned in Section 730; but, where other expert witnesses are called by a party to the action, their fees shall be paid by the party calling them and only ordinary witness fees shall be taxed as costs in the action.
Evidence Code 733 allows a spouse or parent to hire their own expert to challenge the 730 evaluator’s recommendations. In child custody cases, there may be limitations to what an Evidence Code 733 expert can testify about. He or she may not be permitted to testify about what is in the children’s best interest and attempt to substitute his or her own opinion for that of the 730 evaluator. The Evidence Code 733 expert usually testifies about the 730 evaluator’s errors and why the court should not consider the opinion, in whole or in part.
Who Pays the Expert? The court determines who is obligated to pay for the expert and/or subject to reallocation. This means one spouse pays, but the court reserves the power to order the other spouse to pay for all or part of it. This reallocation typically takes place after the 730 evaluation is complete but can be done earlier. The ability to pay the cost of the 730 evaluation and other equitable factors are important in the judge’s decision as to which party should incur those cost.
Experts are always critical to a case, and this is especially true when a judge appoints an expert to assist the court in reaching a fair and legal solution. Any inquiries, call my office at 310-601-7144 or email me at [email protected]
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