"People v. Sanchez" and Child Custody Evaluations

In the 2016 criminal case People v. Sanchez, the California Supreme Court considered the relationship between the hearsay rule and out-of-court statements used as the basis for an expert’s testimony.

The issue in Sanchez was whether a prosecution expert’s description of the defendant’s past contacts with police was inadmissible hearsay, or non-hearsay because it was offered as a basis for the expert’s opinion, rather than for the truth. The expert had never met the defendant and did not have personal knowledge of his past contacts with the police; rather, the expert’s information came from police reports and other collateral sources.

Generally, an expert witness can rely on hearsay as the basis for his or her opinion, per Evidence Code Section 801. In Sanchez, however, the Court ruled that when an expert witness relates to the finder of fact case-specific, out-of-court statements on which she based her opinion, and treats those statements as true and accurate, those statements of the expert witness are hearsay. This remains true even if the statements are presented as a hypothetical if the facts closely track those of the case. Unless the underlying statements meet a hearsay exemption, are independently entered into the record as evidence, or are stipulated to, they are inadmissible.

While Sanchez was a criminal case, its ruling about hearsay also applies in the family law context.  Of particular interest to family law practitioners is the issue of child custody evaluations, and whether the Sanchez rule will render the contents of child custody evaluation reports inadmissible. The law is still unsettled on this point, and reasonable minds disagree on the effect that Sanchez may have.

Yes, Sanchez Applies to Child Custody Evaluations 

One school of thought considers child custody evaluations primarily through the lens of the Evidence Code, and thus would apply Sanchez rather strictly. Under this view, a child custody evaluator would be able to testify as an expert witness about general child development information and theories, information related to the expert’s background, training, and experience, and direct observations made by the evaluator herself.  However, the evaluator would not be able to testify about interviews with collateral sources or case-specific documents that are not already part of the record.

The reasoning behind this view is that the evaluator would be conveying statements from collateral sources or other hearsay sources, without giving the opposing party the opportunity to cross-examine the source.  Hearsay information would need to be brought in as evidence under an exception to the hearsay rule, or the collateral source would need to be put on the stand. This would frequently have the result of rendering much of the contents of a child custody evaluation inadmissible if only the evaluator is testifying.

No, Sanchez Does Not Apply to Child Custody Evaluations

Another school of thought finds that Sanchez does not apply to child custody evaluations, because child custody evaluations are exceptions to the Evidence Code both by statute and by judicial decisions. According to this view, child custody evaluators, as set out in the California Rules of Court, Rule 5.220, have a broad legislative mandate to collect data from hearsay sources. Child custody evaluations are meant to provide context to the court, and to help assess custody in light of all available circumstances.

The CRC requires the evaluator to substantiate information from multiple sources. Given that the evaluator is required to gather information from hearsay sources, it seems unlikely that that legislature intended to require a separate evidence presentation for each individual collateral source or fact, which would be extremely time-consuming and expensive, and would counteract a purpose of child custody evaluations, which is to present information to the judge in an expeditious way. The line of judicial decisions finding that child custody evaluations are admissible evidence extends back to the 1940s.  As recently as 2015, courts have found that even flaws in child custody evaluations go to the weight and sufficiency of the evidence, not admissibility.

The child custody evaluation rules provide for safeguards to take the place of the hearsay rule. All child custody evaluators must be licensed mental health professionals, have specialized training and expertise, and have mandatory domestic violence training. Requiring the evaluator to consult multiple sources helps substantiate any conclusions, but also the evaluator must report inconsistencies in the data. Further, the evaluator must identify all hearsay sources, allowing the parties to challenge the contents of the report and cross-examine the collateral sources if they wish to do so. By statute, the right to cross-examine the evaluator cannot be waived until the party has received the report. (Family Code Section 3117).

Conclusion

The Sanchez rule is quite new, and we have not yet seen its application at the family law appellate level. However, practitioners would do well to consider both sides of this argument, and be prepared to make and meet objections to the admissibility of child custody evaluations.