Monday, February 10, 2014

Court Appointed Custody Evaluator Is Immune, Right or Wrong

Bergeron v. Boyd, No. A137802 (D1d4, as modified Feb 4, 2014) 

The mother in a child custody fight sued a psychologist who was acting as a child custody evaluator, appointed by the court as neutral expert under Evidence Code § 730. The psychologist allegedly wrote a biased custody report and issued some interim custody orders adverse to the plaintiff under authority that had been delegated to him by the court. Plaintiff sued for breach of contract, negligence and intentional infliction of emotional distress, but the trial court granted defendant’s demurrer, dismissing the case because the psychologist, who was acting under the auspices of the court, was protected by absolute quasi-judicial immunity. The court of appeal affirms. Generally, on-all-fours precedent has held that family law custody evaluators and other retained neutrals acting pursuant to the authority of the court are entitled to quasi-judicial immunity. It is true that, in this case, the family court judge may not have had the authority to delegate the authority to issue interim custody orders to a custody evaluator. But that did not vitiate the immunity, which affords absolute protection for “all judicially-related actions regardless of whether the judicial officer exceeded his or her legal authority or jurisdiction to act.” Here “all of the actions complained of were well within [the psychologist]’s judicially delegated role as a family court child custody evaluator, whether or not such delegation was legally authorized[.]” Thus, because the psychologist was effectively acting as a deputized officer of the court, he was entitled to quasi-judicial immunity and a demurrer was properly sustained.


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