Admissible: Why Matinda S., Not People v. Sanchez, Governs Child Custody Evaluators¹

Leslie Ellen Shear, CFLS, CALS & Julia C. Shear Kushner, J.D.

Leslie Ellen Shear is one of three California lawyers dual-certified as a family law specialist and an appellate law specialist by the State Bar of California Board of Legal Specialization. Her noteworthy appellate cases include Michael H. v. Gerald D. (U.S. Supreme Court); Kristine H. v. Lisa R. (California Supreme Court); Marriage of Seagondollar (California Court of Appeal). She has practiced family law in California since 1976. Leslie is a fellow of the International Academy of Family Lawyers. Leslie’s full bio can be found at https://tinyurl.com/lesbio180223

Julia C. Shear Kushner joined Leslie Ellen Shear’s practice in 2012, after a federal district court clerkship in the Central District of California for the Honorable Cormac J. Carney. Julia graduated from UCLA School of Law in 2010. There, she served as chief managing editor of the UCLA Law Review. Her law review comment in that journal, "The Right to Control One’s Name", is cited in Witkin. With Leslie, she co-authored an article on abduction risk and prevention for the Journal of Child Custody. She is a member of the LACBA Appellate Courts section executive committee. Julia recently had her first published appellate decision (In re Marriage of Dalgleish and Selvaggio).

The California Supreme Court decision in People v. Sanchez, 63 Cal. 4th 665 (2016), sent shockwaves through the family law community. Sanchez held that expert witnesses cannot be used to relate the case-specific hearsay facts they relied upon to triers of fact in criminal prosecutions.² Under Sanchez, case-specific investigative evidence gathered or relied upon by a party’s retained expert witness may not be considered unless it is independently introduced or falls within a statutory or decisional exception to the hearsay rule. Would the appellate courts extend the holding of Sanchez to experts in family law cases, including forensic accountants, appraisers, vocational evaluators, and child custody investigator/evaluators? In focusing on the Sanchez reasoning, many failed to recognize that there is a separate class for court-appointed social studies in proceedings related to the welfare of children. "Evidence Code section 1200 provides for admissibility of hearsay evidence meeting the conditions of an exception to the hearsay rule created by statute or decisional law. Exceptions to the hearsay rule may thus be found in other codes as well as in the Evidence Code. (See the Senate Committee on Judiciary’s Comment to Evid. Code Section 1200.)"³