Appeal from a postjudgment order of the Superior Court of Orange County, Clay M. Smith, Judge. (Super. Ct. No. 05D011298)
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Jack A. (father) appeals a postjudgment order awarding sole legal custody to Christina Adams (mother) of the parents' only child, J. (now 14 years old). Because the court erred by refusing to remove an Evidence Code section 730 evaluator for bias and then relying on the evaluator's biased report in awarding mother sole legal custody of J., we reverse the custody modification order.*fn1 We also hold the court erred by denying father's motion for the appointment of a special master and father's request for a determination of the reasonableness of the section 730 evaluator's fees. We remand the matter to the trial court for further proceedings consistent with this opinion.
In this case, the parties disagree fundamentally on how best to raise
their highly intelligent son, J., who was diagnosed at a young age
with Asperger's Syndrome, a form of high functioning autism. The
parents care deeply for their son, but hold diametrically opposed
views on the extent of his disabilities and on the efficacy of certain
types of autism treatment. Mother has written a published book on
autism, gives lectures on the subject, helps other families obtain
services for their children with autism, and plans to write several
more books about autism. Father is a special education attorney and
has a master's degree in psychology.
In 2008, when the parents divorced, they agreed, in a stipulated judgment pursuant to Code of Civil Procedure section 664.6 (the judgment), to submit future disputes about matters involving J. (such as custody and education) to a special master selected in accordance with the judgment. The judgment provided: (1) the special master would be a licensed mental health professional; (2) if a party disagreed with the special master's decision, the party could seek the court's intervention; and (3) the special master would report any unresolved conflicts to the court. Under the judgment, the parties shared joint legal custody of J. and divided their physical custody of him based on a designated schedule.
In January 2009, mother discontinued any direct communication with father and advised him she had asked her fiance to be "an intermediary, whenever possible, for ALL communications with you."
In 2010, a dispute arose between the parents as to which middle school J. should attend in the fall, after his graduation from Kaiser Elementary School in the Newport-Mesa Unified School District (NMUSD). Mother had recently moved to Laguna Beach with her new husband.
In a March 16, 2010 e-mail message to mother, father asked her to comply with the judgment's special master provisions so that a special master could be selected with enough time to gather information to make a school recommendation for J. Father stated: (1) he believed J. should attend Ensign Middle School (Ensign) in NMUSD; and (2) J. had been telling father for several months that mother wanted to transfer J. to the Laguna Beach Unified School District (LBUSD).
Two days later, in an e-mail reply to father, mother's husband said he and mother had not yet decided their school preference for J. Five days later, mother e-mailed (without copying father) a regional special education director and stated she (mother) planned to enroll J. in Thurston Middle School (Thurston) in Laguna Beach. Two days later, mother's husband e-mailed father a message from mother, asserting that father had failed to provide them with adequate information about why father preferred Ensign. Mother complained that the "only information" father had given was that (1) LBUSD's special education department was difficult to work with, and (2) J. would be better off at a school where he knew some of his peers.
On May 27, 2010, mother resorted to the legal system by filing an order to show cause (OSC) seeking sole legal custody of J. She asked the court to order an evaluation under section 730 to determine whether father "is capable of being an effective parent without supervision." She also asked the court to modify the judgment's special master requirement, asserting that the parties' past use of special masters had "been to no avail." Mother declared: (1) the most pressing concern was the choice of a middle school for J.; (2) she favored Thurston and father preferred Ensign; and (3) she resided in Laguna Beach close to Thurston.
Mother further declared: J. "has significant medical, psychological and educational needs which require a myriad of outside services. [J.] is on a medically prescribed special diet and follows strict medical protocol to ameliorate his behaviors and to improve his overall health and well being. However, [father] often feeds [J.] foods that are not on his medically prescribed diet, causing him documented negative adverse effects." Furthermore, "[c]ontrary to [J.]'s best interests, [father] will not permit any of [J.'s] service providers to come to his home." (In a subsequent declaration, mother stated that behavioral therapists from the Center for Autism and Related Disorders, Inc. (CARD) visit her home four days a week. At trial mother testified that without his diet and medications, J. is moderate to severe on the autism spectrum.)
Father responded with his own OSC, seeking the appointment of a special master pursuant to the judgment. Father listed the names of three "mental health practitioners who act as special masters." He declared he had contacted mother five months earlier to ask her to participate in agreeing to a special master concerning the choice of a school for J. He declared J. had been enrolled in NMUSD since the boy was three years old.
Father further declared: Mother "feels it necessary to maintain a
staff of support personnel at her residence to assist her with" J.*fn2
Mother "has turned our son's disability into a cottage
industry. She spends her time researching treatment methodologies for
autism that often have little or no proven validity. For example,
[mother] has for several years fed [J.] camel's milk as a purported
treatment for autism. [Mother] stopped taking [J.] to his previous
pediatrician of [seven] years [because the pediatrician] was critical
of [mother's] insistence upon camel's milk as a treatment for autism."
Mother now takes J. to a "naturopathic doctor." Several allergy tests
had been "administered to [J.] over the years," but no test (to
father's knowledge) had shown J. to be allergic to dairy products.
NMUSD "is much more active in providing programs for students with
autism than is" LBUSD. (In a subsequent declaration, father declared
the parties' former special master had successfully facilitated
decision making: "[D]uring the entire time that Dr. Johnson served as
special master, there was not a single issue submitted to him for
resolution that subsequently required either party to seek court
In a July 21, 2010 stipulated order regarding a section 730 evaluation, the parties agreed that: (1) the parties and J. would submit to a full psychological examination by David J. Jimenez "for the purpose of making a recommendation as to child custody"; (2) Jimenez's report would "be admitted into evidence subject to cross-examination" at any custody hearing; and (3) the parties would divide the cost of Jimenez's fees equally.
In an August 2, 2010 stipulated order on mother's OSC, the parties agreed that Jimenez would serve as the special master pursuant to the parties' stipulated divorce judgment. The parties further agreed not to submit issues to Jimenez in his capacity as special master until he had completed his section 730 evaluation, unless the parties stipulated in writing and Jimenez agreed "to so act."
In a separate August 2, 2010 stipulated order concerning a school recommendation, the parties agreed that: (1) Jimenez would recommend a school for J. before addressing other issues and prior to completing his section 730 report; and (2) the parties would place J. in the school recommended by Jimenez, but the recommendation would be without prejudice to either party and subject to change after the section 730 report was complete.
On September 2, 2010, Jimenez recommended that J. be enrolled at Thurston.
Father's Motion to Stay the Section 730 Evaluation and Remove the Evaluator
A. Father's Removal Motion and Declaration
On December 20, 2010, father filed an ex parte application to stay the section 730 evaluation and remove Jimenez as the evaluator. (We will sometimes refer to this application as father's removal motion.) Father asked the court to stay the section 730 evaluation to prevent the parties from incurring any more fees for "an evaluation of limited or no value," and stated "Jimenez should not write a report for which he may not be paid." Father declared Jimenez had acted outside the scope of a section 730 evaluation and demonstrated a bias in favor of mother. Specifically, father declared:
(1) Father's Boat. In an interview, father told Jimenez he enjoyed boating with J., had recently bought a boat, and had taken progressively longer boat trips with J. with the plan of going to Catalina when conditions were suitable. Father had operated boats for over 40 years, made over 30 trips to Catalina without mishap, and had taken J. with him on boat trips to and from Catalina. In August 2010, Jimenez wrote father's attorney saying: (1) Jimenez had received a voicemail message from mother expressing concern about father's taking J. to Catalina on his boat; and (2) Jimenez had contacted the harbor master at the Marina Del Rey Harbor, who "recommended that a crossing to Catalina should not be attempted in a boat of less than 25 feet, contingent on factors such as water and weather conditions, nautical skill of the boat operator, knowledge of safety procedures, type of boat and boat manufacturer, etc. [¶] Without inquiring as to [father's] skill as a boat operator, the type or manufacturer of [his] boat, or the weather or water conditions under which a trip to Catalina might be attempted, Dr. Jimenez stated in his . . . letter that he was 'strongly discouraging [sic] both parties to refrain from this type of activity, or any other type of activity with [J.] which could be accidentally interpreted by others as child endangerment as defined by California Penal Code [section] 273[, subdivision (a)].'" Father complied with Jimenez's discouragement and did not take a boat trip to Catalina with J.
(2) Life Mask. In October 2010, about a week before J.'s 13th birthday, J. and father began making a "life mask" -- "intended to be a remembrance of [J.] becoming a teenager" -- using quick setting plaster and gauze. Jimenez phoned father to say mother had asked Jimenez to instruct father to stop creating a life mask of J. Father and J. stopped making the life mask.
(3) Internet. On November 12, 2010, J. disabled the content filter on a computer at father's house and accessed adult Internet sites late at night when father was asleep. The next morning, father discovered J. had printed a picture of a naked woman. Father e-mailed mother about the incident before returning J. to her that evening and said he "had curtailed any further [I]nternet access by [J.] at [his] house as a result of this incident."
(4) Father's Knife Collection. On November 29, 2010, in the late afternoon, Jimenez phoned father and said he (Jimenez) was parked in front of father's house and wanted to "look at the browsing histories on computers used by [J.], inspect [father's] knife collection and talk with" father without J. present. Father drove home as requested and let Jimenez examine the browsing histories of computers that might have been used by J.
Father has a "plastic container containing numerous knives of different kinds . . . accumulated over the years." Jimenez inspected each knife. Father offered to "get rid of the collection" if Jimenez thought the knives were a problem. Jimenez said the knives were not a problem, but father should lock them up. Father told Jimenez that J. owns pocket knives and showed Jimenez "the drawer in [J.]'s bedroom where he usually keeps his pocket knives. Dr. Jimenez looked at the pocket knives in [J.]'s drawer and said he was not concerned about them." At the time, J. was 13 years old and had owned pocket knives for at least three years. J. had "qualified for the possession of pocket knives on Boy Scout campouts by demonstrating he knows and observes the rules associated with safe and responsible pocket knife use."
Jimenez asked whether father had any firearms in the house. Father affirmed he did not. Father had previously given Jimenez a copy of father's declaration under penalty of perjury stating that he had no firearms in his house and there had been no firearms in any house in which father had resided for at least the last 10 years.
Jimenez wrote father's attorney recommending that father's knife collection be secured from J.
Just three days later, Jimenez "asked to see where the knife collection was kept. [Father] showed Dr. Jimenez the cabinet where the knife collection has been for the last [four] years and explained to him that [father] had not yet had an opportunity to install a lock on the cabinet. [Father said he] was in the process of finding an appropriate cylinder lock to install on the cabinet door."
The next day, Jimenez wrote father's attorney that father's "failure to put [the] knife collection under lock and key" had caused Jimenez "'dismay and disappointment.' Dr. Jimenez referred to [J.]'s behavior in his letter as being 'unpredictable' with 'poor judgment, and poor impulse control.' Dr. Jimenez stated that it was his 'informed belief that these unsecured knives could pose a very serious risk to this thirteen year old minor, or others.'" "Jimenez wrote: [¶] 'I am hereby directing Mr. [A.], by way of his counsel, to lock these knives in such a manner that they do not pose a risk, and further to secure these knives in a location not known to [J.] Mr. [A.] should provide this child custody evaluator with photographs by fax NO LATER THAN 5:00 P.M. ON DECEMBER 6, 2010, with regard to the safety measures he has taken, accompanied by a written statement documenting these actions, and an explanation of the reason or reasons that he had chosen not to take action in this regard following my November 29, 2010 home visit.'" Jimenez also wrote that the "small pocket knives" he had inspected in J.'s bedroom "did not cause [him] any concern."
That afternoon, father "installed a cylinder lock on the cabinet where the knives were kept . . . and immediately emailed photographs to Dr. Jimenez showing the lock installation. [Father] further explained in an email to Dr. Jimenez that the reason the lock was not installed earlier was because [father] did not realize that [Jimenez] considered the installation of the lock to be a matter of such urgency and that [father] had planned to do the installation over the weekend."
Three days later, Jimenez e-mailed father to ask "what precautions [father] had made regarding securing the key that opened the lock of the cabinet where the knife collection was now stored. [Father] responded by email informing Dr. Jimenez that [father] would keep the key to the cabinet in a separate safe with a combination lock as an additional layer of security."
(5) J.'s Knife. Based on Jimenez's verbal and written statements he was not concerned about J.'s pocket knives, father "did not take or secure [J.]'s pocket knives [and] did not attempt to stop [J.] when he took one of his pocket knives from [father's] house to . . . mother's house on Saturday, December 11, 2010." J. had told father that mother had seen this pocket knife before and was "'fine with it.'" Father e-mailed mother the next morning, informing her that J. had taken a pocket knife to her house and asking her "to please make sure that the pocket knife not be inadvertently left in [J.]'s sweatshirt pocket where it might accidentally end up at school with him."
Around 10:15 p.m., Jimenez phoned father and instructed him to appear at Jimenez's office "the next day to explain the circumstances surrounding [J.] taking a pocket knife to his mother's house the previous day." Jimenez stated the requirement was "'non-negotiable.'" The next day, father traveled to Jimenez's office, which was located 50 miles from father's home and office. Jimenez showed father "an enlarged picture" of J.'s pocket knife. Jimenez read father the definition of criminal child endangerment from Penal Code section 273, subdivision (a). Jimenez stated he was considering reporting father to child protective services for suspected child endangerment.
(6) Safety Plan for Father's House. The next day, Jimenez e-mailed father: "Jack. As I indicated last night I am directing you to carefully walk through your house today including the rear yard, garage, driveway, etc. with a different perspective, identify potential safety hazards for [J.], identify the actions needed to rectify these, and prepare a 'safety plan' and fax it to me by the end of the business day. Include hazards that may be in the boat and in the garage such as solvents, improperly stored flammable containers, ...