By M. Jude Egan, Ph.D., J.D., Certified Family Law Specialist — Egan Law, Santa Maria, California
When someone stands up in a courtroom and tells a judge where your child should live, what qualifies them to say so? It is a question most parents never think to ask until they are sitting in a family law department watching a stranger — a custody evaluator, a mediator, or a court-appointed lawyer for their child — deliver an opinion that may reshape their family. And it is a question the law answers with surprising precision for some of those strangers and hardly at all for others.
This is the third article in a series on minor’s counsel in California custody cases. In Part 1, I explained what minor’s counsel is and what Family Code § 3150 actually authorizes. In Part 2, I walked through Ramsden v. Peterson (2022) 76 Cal.App.5th 339 — a published opinion arising from a case I tried — which held that whether minor’s counsel’s advocacy is called a “recommendation,” a “position,” or an “argument” is a semantic distinction without substantive significance. Here I want to step back and ask the deeper question the case raises: what does California law require of a person before they may recommend a custody arrangement, and does minor’s counsel meet any of those requirements?
The Statutory Scheme for Actual Custody Evaluators
California has a formal answer to the qualification question. When a court wants a professional assessment of a family, it orders a child custody evaluation under Family Code § 3111 or appoints an expert under Evidence Code § 730. The people who perform those evaluations are not self-selected. The Legislature has told us exactly who they may be.
Family Code § 3110.5 restricts the role to a defined set of professionals: psychiatrists with an active medical license, licensed psychologists holding a doctoral degree in psychology, licensed marriage and family therapists, licensed clinical social workers, licensed professional clinical counselors, or court-connected evaluators certified by the court as meeting the Judicial Council’s qualifications. The statute does more than gatekeep credentials. It directs that evaluators “utilize comparable interview, assessment, and testing procedures for all parties that are consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards,” and it requires evaluators to inform each adult party of the purpose, nature, and method of the evaluation.
Family Code § 1815 supplies the educational floor: a master’s degree in psychology, social work, marriage and family counseling, or another behavioral science substantially related to family interpersonal relationships; at least two years of clinical experience; knowledge of the California court system; knowledge of adult psychopathology and the psychology of families; knowledge of child development, child abuse, the effects of divorce and domestic violence on children, and child custody research; and training in domestic violence issues.
Read together, these statutes are not bureaucratic box-checking. They are the Legislature’s considered judgment about what it takes before a person’s opinion on custody deserves the court’s institutional trust. Notably, the Family Code uses the word “recommend” in the context of § 3111 evaluators — not in the context of minor’s counsel.
What the Law of Expertise Requires
Family lawyers do not often get to talk about the jurisprudence of expertise, even though it undergirds our use of experts. The framework is worth a brief tour, because it explains why the evaluator statutes look the way they do.
The older rule comes from Frye v. United States (D.C. Cir. 1923) 293 F. 1013: expert testimony must rest on techniques generally accepted within the relevant scientific community. The United States Supreme Court modernized the inquiry in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, asking whether a theory can be tested, whether it has been peer-reviewed, and whether it has a known error rate. Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137 then extended the judge’s “gatekeeping” duty to all expert testimony, not just laboratory science.
California brought these principles home in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, which charges trial courts with ensuring that an expert opinion rests on a reasonable basis rather than a leap of logic or conjecture. And People v. Sanchez (2016) 63 Cal.4th 665 added a critical evidentiary limit: an expert may rely on background hearsay in forming an opinion, but may not relay case-specific facts to the trier of fact unless those facts are independently proven or fall within a hearsay exception.
Distilled, these cases and the evaluator statutes converge on what I think of as the “Big 3” of expert due process:
- Knowledge and education. The opinion must come from somewhere — demonstrated training and command of generally accepted standards in a recognized field.
- Consistent methodology. The same interview, assessment, and testing procedures must be applied evenly to all parties. An evaluation that studies one parent closely and the other barely at all is not a methodology; it is an impression.
- Informed consent. Each party must be told the purpose, nature, and method of the evaluation before it begins. No hidden agendas, no shifting criteria.
These are not technicalities. In an adversarial system built on the right to confront and test the evidence against you, they are the conditions under which a third party’s opinion can fairly influence a judgment about your child.
The Gap: Minor’s Counsel Meets None of These Requirements
Now hold minor’s counsel up against that framework.
Lawyers are the great generalists. We specialize in areas of law, not areas of knowledge. Any family lawyer can tell you about the exotic subjects we have had to learn on the fly — oil leases, unvested stock options, cryptocurrency. We apply legal principles to those subjects precisely because we are not subject-matter experts in them. Nothing about a law degree, or the training required for a minor’s counsel appointment, satisfies Family Code § 1815’s behavioral science education, § 3110.5’s licensure categories, or the clinical experience the Legislature demands of evaluators.
Nor does minor’s counsel operate under the Big 3. There is no statutory requirement that minor’s counsel meet both parents, apply comparable procedures to each household, or disclose a method to anyone. And unlike a § 3111 evaluator or a § 730 expert — who must produce a report and stand for cross-examination — minor’s counsel cannot be called as a witness. Family Code § 3151 insulates them from the very process by which our system tests opinions. When I sought to cross-examine minor’s counsel at trial in Ramsden, the answer was that she was not a witness. That was correct as a matter of statute. But it means her stated positions reached the court untested in a way no expert’s opinion ever could.
Finally, minor’s counsel is, by definition, an advocate. I have argued — including in defending against motions to remove minor’s counsel for “bias” — that an advocate is supposed to be biased in favor of the client. That is what advocacy is. Neutrality and advocacy are antithetical. Yet there are only two footings on which a custody recommendation could rest: expertise or neutrality. Minor’s counsel has neither. After Ramsden, however, minor’s counsel across the state are routinely asked by judicial officers for recommendations anyway — and in my experience, those recommendations are rarely treated as mere argument.
Who Regulates a Lawyer Acting as a Quasi-Evaluator?
The gap has practical consequences the profession has not grappled with. Family Code § 3110.5(e) subjects licensed evaluators to discipline by their licensing boards — the Medical Board, the Board of Psychology, the Board of Behavioral Sciences — for unprofessional conduct. A lawyer rendering a custody recommendation answers to none of those boards. And if the lawyer is functioning as a quasi-evaluator rather than as an advocate, it is a fair question whether the State Bar’s rules, which govern the practice of law, squarely reach that conduct either. Malpractice coverage raises the same doubt: errors-and-omissions policies insure legal services, not subject-matter expert opinions. A minor’s counsel who makes a recommendation that goes badly wrong may discover the answer to the coverage question the hard way. I raised these concerns at trial and on appeal in Ramsden; they remain, to my knowledge, unanswered.
Toward a Methodology — or Toward Honesty About Argument
I do not think the answer is to burn down Family Code § 3150. Children in high-conflict cases often genuinely need a voice. But if courts are going to ask minor’s counsel to recommend custody arrangements, due process suggests a defined methodology: meet both parents, not just one; interview the collateral witnesses — teachers, counselors, physicians, coaches; base every position on competent, admissible evidence rather than layered hearsay; and disclose the process followed so the parties know what the position rests on. That is roughly what we demand of every other professional whose opinion moves a custody order.
The alternative is equally principled: take the Ramsden court at its word. If a recommendation truly is nothing more than argument, then courts should treat it strictly as argument — entitled to no evidentiary weight, no pride of place, and no power to substitute for proof — and should rest their orders on evidence produced and tested in the ordinary way.
For parents, the takeaway is simple and worth remembering at every stage of a custody case: when anyone — evaluator, mediator, or minor’s counsel — offers an opinion about where your child should live, you and your lawyer are entitled to ask what that opinion is actually based on. Who did they meet? What did they review? What method did they follow? The answers matter, because the law’s entire architecture of expertise exists to make sure that opinions powerful enough to move a child are built on something more than impression.
This is Part 3 of a three-part series on minor’s counsel in California custody cases. Read Part 1: What Is Minor’s Counsel? and Part 2: Ramsden v. Peterson and Family Code § 3150.
This article is for informational purposes only and does not constitute legal advice. Every case is unique. Consult a qualified attorney for advice regarding your specific situation. Egan Law · Santa Maria, California · (805) 332-3984 · judeeganlaw.com
