Absolute Immunity for Child Custody Evaluators

By Zachary Pelchat,
Former Legislative Counsel

The Therapist
May/June 2000

Child custody evaluators cannot be successfully sued for simply doing their jobs. Evaluators are protected by two important legal concepts; the common law doctrine of quasi-judicial immunity (evaluator performing a judicial function) and the statutory protection of the litigation immunity (no suits based on courtroom testimony).

Quasi-judicial immunity
Courts are immune from lawsuits based on the administration of justice. This is known as judicial immunity. If a judge were liable to a private party for civil damages based on his or her rulings, it would bring courts to a standstill. Every ruling that went against a party would not only be appealed, but the judge would be sued for "malpractice." This concept of judicial immunity is extended to experts who are appointed by the courts to serve a judicial function, such as a child custody evaluator. Thus, the evaluator receives "quasi" judicial immunity.

The court needs to have experts available who can review evidence and apply their own specialized knowledge, such as a Licensed Marriage and Family Therapist reviewing a family system, to recommend physical custody arrangements. If these experts were exposed to personal liability each time they conducted an evaluation, every party that did not like the recommendation (which is usually one or both of the parties) would sue. Again, the courts would come to a standstill as every family law case spawns several civil cases. This rule was clearly set out over a decade ago in Howard v. Drapkin. In that case, the California Court of Appeal held that:

Absolute quasi-judicial immunity is properly extended to these neutral third parties for their conduct in performing dispute resolution services which are connected to the judicial process and involve either (1) the making of a binding decision, (2) the making of findings or recommendations to the court or (3) the arbitration, mediation, conciliation, evaluation, or other similar resolution of pending disputes.i

Here, the court has clearly given the absolute immunity afforded judges to child custody evaluators via the common law doctrine of quasi-judicial immunity. However, the court did not stop there, because the litigation privilege also applies to create immunity for child custody evaluators.

The litigation privilege
In granting immunity to child custody evaluators, the Howard court also applied the litigation privilege, which had been defined by the California Supreme Court only four months earlier in Silberg v. Anderson. The Silberg decision settled what elements were necessary for the litigation privilege to be met. California Civil Code §47, subdivision 2 provides a "privilege for publications made in judicial proceedings." The Supreme Court upheld the following formula: "Privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants as authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action."ii

This means that a Licensed Marriage and Family Therapist who provides testimony in court as a child custody evaluator is immune from a lawsuit based on such testimony. The litigation privilege bars a lawsuit based on what the evaluator says in court. The Supreme Court went on to emphasize how important this litigation privilege is to society.

Given the importance to our justice system of ensuring free access to the courts, promoting complete and truthful testimony, encouraging zealous advocacy, giving finality to judgments, and avoiding unending litigation, it is not surprising that section 47(2), the litigation privilege, has been referred to as "the backbone to an effective and smoothly operating judicial system." iii

The Supreme Court also held that the litigation privilege was absolute, a fact that was further analyzed in Howard. The Howard decision summarized the absolute nature of both the litigation privilege and quasi-judicial immunity.

The absolute immunity and privilege to which defendant is entitled must protect her from suit. Such doctrines are not mere defenses to liability. (citations omitted) If such protection is to be meaningful it must be effective to prevent suits such as this one from going beyond demurrer. Avoiding the expense and burden of having to defend an action such as this one is precisely the goal which the principles of absolute immunity and privilege were intended to achieve. In order to best protect the ability of neutral third parties to aggressively mediate or resolve disputes, a dismissal at the very earliest stage of the proceedings is critical to the proper functioning and continued availability of these services.iv

In sum, if a party does bring a lawsuit against a child custody evaluator, the courts should dismiss the case as soon as possible. Some courts, however, have gone beyond simply dismissing the cases. A recent case has set a precedent for sanctions against a party who sued a custody evaluator in bad faith.

Sanctions for suing an evaluator
The purpose of the absolute immunity given to evaluators is to ensure that their services are available to the court. Immunity is provided so that the threat of a lawsuit does not scare evaluators away from providing testimony. However, if parties continue to sue anyway, out of spite or to harass the evaluator, the courts must protect the immunity and the evaluator. In Laborde v. Aronson, the Court of Appeal did just that. In Laborde, one party was dissatisfied with the custody evaluator and filed a lawsuit against her. The trial court dismissed the complaint in a summary judgment based on the litigation privilege. The trial court also awarded the evaluator sanctions of $24,000 against the party and his attorney pursuant to Code of Civil Procedure §128.7. The trial court found that the party brought an action that was "frivolous and without merit…and with bad faith…"v The Court of Appeal affirmed the dismissal and the sanctions. The Laborde decision shows that absolute immunity of custody evaluators is now well established in California law and that an effort to bring a frivolous lawsuit against an evaluator in bad faith can lead to not only dismissal of the case, but sanctions against the party filing the lawsuit.

Child custody evaluators have absolute immunity from lawsuits based on their testimony and recommendations. Both quasi-judicial immunity and the litigation privilege protect them from retaliatory litigation. Because of the high emotions that run in family law courts, those immunities are sometimes not enough. Even though the law is clear that the evaluator is immune from liability, a party may be so angry and emotional that he/she will sue purely out of spite or anger. As a result, the courts have also imposed sanctions as a punishment for that particular frivolous lawsuit and as a deterrent to others. If you have questions about this immunity, you can always call CAMFT for a consultation.

i Howard v. Drapkin (1990) 222 Cal.App.3d 843, 860
ii Silberg v. Anderson (1990) 50 Cal.3d 205, 212
iii Id at 214, quoting McClatchy v. Superior Court (1987) 189 Cal.App.3d 961, 970
iv Howard v. Drapkin, supra, at 864
v Laborde v. Aronson (2001) 92 Cal.App.4th 459, 462

This article appeared in the September/October 2001 issue of The Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. The information contained in this article is intended to provide guidelines for addressing legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.