attachment to form fl-327 (order appointing child custody ... · web viewattachment to form...
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ATTACHMENT TO FORM FL-327
(Order Appointing Child Custody Evaluator)
This court appoints MARLENE W. VALTER, PsyD as a Child Custody Evaluator ("Evaluator") under Family Code Section 3110 et seq., California Evidence Code 370, and California Rules of Court, Rule 5.220.
Dr. Valter will perform an examination and deliver a written report to offer assistance to the court in developing a parenting plan (legal and physical custody and visitation orders).
Information gathered during the examination is not confidential. The parties should expect and anticipate that the information will be considered by Dr. Valter when she analyzes data and forms her opinion and, consequently, the information will likely be included in the final report.
After participating in the examination, after the child custody evaluation report is submitted, and after potential hearings are held, a child custody order may be issued by stipulation of the parties or by court order. The child custody order may result in each respective party having more parenting responsibilities and more custodial time with the child(ren), less parenting responsibilities and less custodial time with the child(ren), or the same parenting responsibilities and the same custodial time with the children each had before participating in the child custody evaluation.
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This court orders that the petitioner [insert the petitioner’s name]; the respondent [Insert the respondent’s name]; and their minor children [insert oldest child’s first and last name], born [insert birthday]; [insert second child’s first and last name], born [insert the child’s birthday; [continue to include all children at issue], participate in the evaluation.
This appointment is not effective until accepted by the evaluator by signing this order and submitting FL-326 form (Declaration of Private Child Custody Evaluator Regarding Qualifications).
This order may only be amended or augmented by an order of this court, or by written stipulation of the parties and counsel, entered as an order by this court. Any separate "Statement of Understanding," written or oral agreement, or other document designed to govern the evaluation is null and void and unenforceable. The nature and scope of the evaluator's responsibilities, duties, and permissible roles are delimited by the terms of this appointment order and the governing statutes and court rules. Cooperation in Evaluation Process, Access to
Information, Records and Witnesses
The Court orders the parties to participate fully in the evaluation, produce the children at the request of the evaluator, and cooperate with the evaluator in all matters in connection with the evaluation, including but not limited to:
Scheduling and keeping appointments,
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Providing information during interviews, Providing records, Identifying potential collateral witnesses and providing
contact information, Completing take-home questionnaires, Submitting to psychological assessment and testing, Participating in observations in office, home, or other
settings as specified by the evaluator. Substance abuse testing (performed in conformance with
procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees) if requested by the evaluator.
Purpose, Roles, and Scope of Evaluation (CRC. Rule
5.220)
The purpose and scope of this evaluation is described in paragraph three of form FL-327, (Order Appointing Child Custody Evaluator).
The evaluator is appointed as an examiner, forensic psychological expert and child custody evaluator. The evaluator is not a psychotherapist, counsel, or mediator. Consequently:
No psychotherapist-patient relationship is created by this appointment nor by any subsequent conduct of the parties and the evaluator. The parties, children, household members, and witnesses to be interviewed and assessed by the evaluator are not patients and do not acquire the rights of patients by their participation in the evaluation process. HIPPA does not apply.
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The examination process for a child custody evaluation can be stressful. The nature of inquiring about historical and current concerns can result in feelings of disappointment, embarrassment, and anger. The evaluator cannot provide relief through counseling or psychotherapy for the parties. In the event a party experiences stressful and negative emotions while participating in the evaluation he or she is encouraged to seek support from another mental health professional and not from the evaluator.
Dr. Valter will inquire about mental health issues and parenting issues. This is part of the examination process and does not constitute psychotherapy or parenting advice. For parenting advice, parties are encouraged to seek advice from another mental health professional and not from the evaluator.Legal Requirements for Evaluation
The parties, counsel, and the evaluator must comply with the procedural and substantive requirements of California Family Code Sections 216, 3025.5, 3110, et seq., and California Rules of Court, Rules 5.220, 5.225, 5.230, 5.235, 243.2, and 2.250. Children's Participation and Testimony
Pursuant to California Rules of Court, Rule 5.250, the court will obtain information and other input from the children through the report and possible testimony of Dr. Valter. The court reserves jurisdiction to make further orders under Rule 5.250.
The Evaluator will follow the requirements of Rule 5.250(e), which states:
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A child custody evaluator, a child custody recommending counselor, an investigator, or a mediator appointed or assigned to meet with a child in a family court proceeding must:
(1) Provide information to the child in an age-appropriate manner about the
limitations on confidentiality and the possibility that information provided to the professional may be shared with the court on the record and provided to the parties in the case;
(2) Allow but not require the child to state a preference regarding custody and visitation (parenting time), and, in an age-appropriate manner, provide information about the process by which the court will make a decision; and,
(3) Provide to the parents of the child participating in the court process information about local court procedures relevant to the child's participation and information about how to best support the child in an age-appropriate manner during the court process.
Litigation Privilege, Civil Immunity, Indemnification
The Court finds, separate and apart from the other terms of this order, that in performing the evaluation, Dr. Valter will be engaged in a quasi-judicial role (including but not limited to referee and/or arbitral function) and shall be entitled to absolute common law statutory immunity. The evaluator is an officer of the court.
Dr. Valter is also protected from civil liability by the litigation privilege. The litigation privilege also protects the parties, counsel, and collateral witnesses from civil liability in connection with the evaluation. (Howard v. Drapkin, 1990, 222 Cal. App. 3d 843; Jacob
B. v. County of Shasta, 2007, 40 Cal. 4th 948).Each of the parties, on his or her behalf and as legal
custodian of the children, have agreed to indemnify and hold Dr.
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Valter harmless from any civil liability resulting from services performed under this appointment Order. Confidentiality
Dr. Valter must submit all documents, releases, consents, waivers, and other matters requiring party consent or advising the parties about the evaluation process to counsel and self-represented parties in advance of the date they are needed so as to provide adequate time for attorney review and advice. Any release, consent, waiver, or other document affecting a party's rights with respect to the evaluation will have no legal effect unless it is approved by counsel and counter-signed by counsel, unless the party is self-represented. Dr. Valter will allow a reasonable period of time for both represented and self-represented parties to get the advice of counsel.
The court finds that the parties have no expectation or rights of privacy or confidentiality other than those created by the specific terms of this appointment order.
In order to protect the privacy interests of the family and comply with California Family Code Section 3025.5 and California Rules of Court, Rule 5.220(i), this order contains specific protective orders that govern access to, and distribution of, the data, records, testimony, reports, and other material that comprise the evaluation process and product.
No information, observations conducted by Dr. Valter, or communications made between the evaluator and any person in the course of the evaluation, or related to this case, will be
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privileged or confidential communications under the California Evidence Code, including but not limited to communications made by the evaluator, the participants in this evaluation, witnesses, the parties' counsel and experts, the court, or any mental health professional assessing or treating any of the immediate members of either household or the children.
The court finds that all communications to Dr. Valter will be made with the expectation that it may be disclosed by Dr. Valter in the report and during testimony in this proceeding.
The duration (see In re Marriage of Kreiss, 2004, 122 Cal. App. 4th 1082), of the privilege and privacy waivers contained in this order are limited in time to resolution of the pending proceedings and any trial on the issues of child custody and terminates with the entry of Judgment on the issue of custody. In other words, records created or communications made or other new privileged material, which comes into existence after entry of the custody Orders resulting from the pending proceedings remain privileged.
The court finds that the waivers and releases of privilege, substantive due process, liberty, equal protection, and privacy interests, are limited to those materials and procedures reasonably necessary under the facts of this particular case to produce data that will assist the court in making custody decisions in the child's best interests. The court retains jurisdiction to issue protective orders in the event of a claim that any request for information or evaluative procedure is unduly intrusive or violating
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of such interests, and is not reasonably necessary to accomplish the purposes of the evaluation.
The court finds that for purposes of obtaining a comprehensive evaluation and the court's use of that evaluation in fashioning custody orders, that each of the parties has waived his or her respective doctor-patient and psychotherapist-patient privileges and their children's doctor-patient and psychotherapist-patient privileges, and that each has tendered the issue of the mental conditions of each of them and their children so as to permit Dr. Valter to have access to health, mental health, educational, law enforcement, employment and similar records, to confer with health care providers, therapists, and educators in the course of the evaluation.
A copy of this order constitutes a release, permitting the disclosure of such otherwise privileged matters, and the release of otherwise privileged records to Dr. Valter provided that the evaluator notifies the parties in writing through counsel (or directly to self-represented litigants) of the identities of the persons or entities from which the release is being presented.
These waivers are not waivers of privilege or confidentiality or disclosures of confidential material for any purpose outside the scope of this litigation and may not be used as the basis for any person to obtain, access, or distribute such information other than within the scope of this litigation.
Each party is ordered to use his or her best efforts to provide access to any information requested by Dr. Valter, including the
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execution (after review and approval by counsel) of all reasonably necessary releases, consents, or authorization forms. In the event of a dispute, the party objecting will immediately submit the issue to the court for resolution on a shortened time basis.
The court finds that each party understands that any privileged or protected health information released to Dr. Valter in the course of this evaluation may be included (in whole or in part) in the evaluator's reports or testimony.
These waivers do not include waiver of the attorney-client relationship or authorization for release of information developed in consultation with privately retained work product experts for the purposes of litigation.Ex Parte Communication
Ex parte communication is defined as discussions involving only one party. As permitted by California Family Code Section 216, and California Rules of Court, Rule 5.235, this provision governs all communication about substantive matters between counsel and the evaluator. This provision gives a method for the participants and their attorneys to submit referral questions, discussions of the issues, references, and substantive evidence to Dr. Valter for consideration while keeping the evaluation process fair and transparent, with opportunities to present rebuttal material and analysis.
All oral communication between the evaluator and any attorney or attorneys for the parties, and between the evaluator and minor's counsel about the substance of the case must be
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made with the consent or contemporaneous participation of all counsel.
All written communication about the substance of the case, including but not limited to, correspondence, documents, records, drawings, computer data, email, diaries, calendars, reports, photographs, recordings, exhibits, references, written statements, illustration, photographs, recordings, images or other tangible items and other physical or documentary materials, may be transmitted to Dr. Valter for consideration through counsel or a self-represented party, provided that a complete and identical copy is provided simultaneously to all other counsel or self-represented parties.
Correspondence asking Dr. Valter to address particular issues may include discussion and analysis of the substantive issues in the case.
Dr. Valter and the parties may communicate by email or other means concerning logistics and scheduling without sending copies to counsel.
To avoid unnecessary expense one attorney, with the consent of opposing counsel, may prepare and provide copies of the relevant pleadings, exhibits, orders, judgments and minute orders to Dr. Valter on behalf of both parties. The opposing counsel may submit copies of any additional pleadings to be considered. Notice of sending all documents are provided to both sides simultaneously.
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Any written materials provided by the parties must be provided simultaneously to the attorneys of both sides. Dr. Valter has the authority to reject information sent and request the materials are submitted through the attorneys.
Nothing in this provision bars Dr. Valter from soliciting, obtaining, or considering records and other tangible materials from non-party witnesses. Materials transmitted to Dr. Valter from non-party witnesses are not ex parte communications within the meaning of this order or within the meaning of California Family Code Section 216.
No one may submit any materials to Dr. Valter, which have been obtained in violation of law, including but not limited to illegal recordings.
Upon receiving an objection to review any material or information submitted, Dr. Valter shall await further direction by stipulation of the parties through counsel or court order.
Review of a large volume of material can significantly increase the cost of the evaluation. Dr. Valter is not obligated to review all materials submitted if it is deemed to be irrelevant.
Admissibility, Distribution and Use of the Evaluator's
Report and Testimony
As is required by California Rules of Court, Rule 5.220(i), Dr. Valter must attach a Notice Regarding Confidentiality of Child Custody Evaluation Report (Form FL-328) as the first page of the child custody evaluation report when the report is filed with the
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clerk of the court and served on the parties or their attorneys, and any counsel appointed for the child to inform them of the confidential nature of the report and the potential consequences for the unwarranted disclosure of the report.
Upon request of either party, the child custody evaluation report shall be admissible in Court without objection as to foundation, subject to the right of cross-examination or motions to strike portions of the report for good cause, in the above-captioned proceeding. The parties waive any objections to the admissibility of hearsay statements contained in the reports (recognizing that child custody evaluators customarily rely upon hearsay as part of the basis of their expert opinions), but retain the right to argue the issue of the weight, sufficiency and reliability of such evidence.
The evaluator will bring her entire file (in digital form) relating to the case to any deposition or court appearance in connection with this matter where the evaluator has been asked to testify. If a hard copy of the file is requested, this must be requested seven (7) days in advance and the costs incurred reimbursed in advance in the same manner as all fees and costs.
The Court finds that it would be detrimental to the children and parties, and violate their constitutional right to privacy for the information contained in the evaluator's report, records or testimony to be made available to any person other than those specifically authorized by this order to receive such information. The court further finds that such disclosure would create risk of
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harm to the children, adult parties, non-parties and collateral witnesses.
No person may disclose this information to any other person, other than as expressly provided herein, without further order of court, and a showing of good cause. Upon receipt by the court, such reports shall be marked as the Court's exhibit for identification, and ordered sealed per California Rules of Court Rule 2.551, and to be inspected by no one except the parties, the other adults assessed as part of the evaluation, counsel of record (including experts with whom counsel may elect to consult).
Others may be permitted to review the report by stipulation of the parties or court order. Others who may be considered to receive a copy of the report are licensed psychotherapists providing assessment or treatment of members of the immediate family of each party and employees of the Superior Court acting in their official capacity.
The evaluator will submit the original report to the Court, with paper or electronic copies to counsel and self-represented parties.
The parties may read the report and the records of the Evaluator, but may not possess copies or remove copies from the offices of counsel. All transcripts of proceedings or pleadings discussing the content of the report, the evaluator's records and data, or testimony of the Evaluator are also to be governed by this provision.
Professionals possessing copies of the report must take all necessary precautions to ensure that the parties' access to the
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report is limited to reading the professional's copy at the professional's place of business. The report is evidence in a legal proceeding and a professional possessing a copy of the report shall not distribute it without stipulation or further order of the court. A copy of this order shall accompany copies of the report provided to professionals.
The Clerk of the Court is ordered to take all necessary precautions to preserve the confidentiality of the report, seal the report, and to restrict access to the report. The report shall not be placed in the Court file. The report must not be included in the file when the file is preserved on microfiche, computerized records or other media. The existence of the report may be noted in the register of actions.
All proceedings in which reference to the report will be made, or in which the evaluator will testify, shall be closed to the public pursuant to Family Code Section 214.
The parties and counsel (except minors' counsel) are restrained from telling the minor children what is contained in the report or what the report has recommended, from permitting the children to have access to the report, from overhearing discussions of the report, or receiving information concerning the report from any source whatsoever. The Court charges each party and counsel with responsibility for protecting the children from being placed in the middle of parental conflict, and from unnecessary exposure to the details and issues in the litigation.
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The evaluator may have ex parte communication with the Court to inform the Court of her belief that a Restraining Order is necessary to prevent an imminent risk to the physical safety of the child or a party as authorized by Family Code Section 216(c)(3).
In the event that the evaluator determines that direct release of the report or information gathered during the course of the evaluation to the parties and counsel may place children, family members or others at serious risk, the evaluator must deliver the report only to the court (and minors' counsel, if any) and request that the court set an ex parte hearing on the court's own motion or motion of minors' counsel, at which the parties are required to produce the children so that the court may take such emergency precautions necessary for protection of children, family members or others, pending a full hearing on the report and its recommendations.
The court orders this emergency exception to the statutory requirement that the parties have access to the report for ten days before any hearing. Risks necessitating use of the provision shall include, but not be limited to, abduction of the children, punitive action directed at the children, exposure of children to inappropriate information or pressure, risk that a child may run away, possible suicide, possible exacerbation of symptoms of mental illness.
Emergency protective actions may include referral for mental health care, temporary changes of custody and visitation, and
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conduct restraining orders and such other orders as the Court deems necessary and appropriate under the circumstances.
Each professional is charged with the responsibility for ensuring preservation of the confidentiality of this material (and the underlying records, chart, data, analysis, test materials, transcripts of the evaluator's testimony). The report and other materials may be used for teaching and for research purposes (with the exception of proprietary, copyrighted test instruments) so long as the names and all identifying information concerning any of the participants and collateral witnesses have been redacted.
At the completion of the evaluation and by the subpoena process, Dr. Valter shall provide a complete copy of the evaluator's entire records relating to the case (including notes, electronic records, emails, test materials and raw data, phone messages, appointment records, billing and compensation records). Nothing may be removed, omitted or altered before the chart is provided to counsel. The evaluator may require advance payment for copying costs.
The contents of the records may be admitted into evidence (copies as well as the original) in this proceeding.
Nothing contained in this provision shall restrict the Court from making interim orders pending such review or augmentation.
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MARLENE W. VALTER PsyD PROCEDURES FOR
CHILD CUSTODY EVALUATION
The appointment of Dr. Valter to conduct a child custody evaluation is a court order. Please review the Appointment Order (FL-327) and its attachment for general expectations, procedures and obligations when participating in a child custody evaluation.
Before meeting with the parties, and beginning the evaluation process, the evaluator is required by Rule 5.220(e)(1) of California Rules of Court, to give the parties and counsel, “a written explanation of the process that clearly describes the (A) Purpose of the Evaluation; (B) Procedures used and the time required to gather and access information; and if psychological tests will be used, the role of the results in confirming or questioning other information or previous conclusions; (C) Scope and distribution of the evaluation report; (D) Limitations on the confidentiality of the process; and, (E) Cost and payment responsibility for the evaluation.”
This order satisfies the requirements of above.Follows are the specific procedures used by Marlene W. Valter,
PsyD when she is court-appointed to conduct a child custody evaluation:POSITION PAPER
Dr. Valter incorporates a variety of strategies to ensure neutrality throughout the evaluation process. One of them requesting is a Position Paper submitted before the first evaluation
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interview. e Position Paper is a summary of the parent’s concerns and custody requests. Regardless which parent is interviewed first, the position of the other parent is known. Please limit the Position Paper to five pages or less. The content is discussed in more depth in subsequent interviews. A parent’s declaration previously filed in court can be submitted to Dr. Valter in lieu of a position paper if it outlines the concerns and custody proposals to be addressed during the child custody evaluation. COMMUNICATION
Another strategy to maintain neutrality is Basecamp. Dr. Valter will invite each attorney and party to link to an Internet site created for the child custody evaluation using an Internet service titled Basecamp. Basecamp is more secure than regular email transmission. It is SSL encrypted and meets online banking and medical records level for security. Messages, scheduling, and documents received and exchanged during the evaluation are uploaded to Basecamp. The information can be reviewed, and attorneys and parents can respond. Communications on Basecamp are sent to all parties simultaneously.
While the evaluation is in progress data generated by Dr. Valter will not be accessed by the attorneys and parties. This data includes psychological testing, interview audio files and transcriptions, as well as report drafts and notes. After the report is submitted, these data can be made available upon request.
e attorneys and parents may not provide case information to Dr. Valter by telephone or other oral communication unless agreed
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to by Dr. Valter. It is important that complete notes that reflect the information can be recorded. For these reasons, the parents should plan to provide most of their information during interviews and in writing through messages on Basecamp. Even if Dr. Valter did not ask a specific question, a parent could volunteer any information he or she believes is important for Dr. Valter to know.
The use of Basecamp by Dr. Valter does not change the attorneys’ responsibilities regarding ex parte communication. RECORDINGS
Dr. Valter records in-person interviews. The audio files are transcribed using Rev.com, a professional service that maintains confidentiality of the contents. By signing this document, the parties agree to audio recording of their interviews and those of their children. A recording that includes verbal understanding and agreement to audio recording will serve as informed consent to recording by all parties, collateral contacts, children and others interviewed for the purposes of the child custody evaluation. RECORDS REQUIRING SPECIAL CIRCUMSTANCES
The parties and attorneys acknowledge that records from the Department of Children and Family Services, children protective service agencies, and CII Criminal records generally cannot be released to attorneys or parties except by court order. If either desires these records from Dr. Valter, secure a court order permitting this.
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OBSERVATIONS AND INTERVIEWS REQUIRING SPECIAL
CIRCUMSTANCES
Because custody and visitation are under consideration, Dr. Valter will need to observe an alleged child victim and alleged parent perpetrator together. If the alleged child victim has supervised visitation with the alleged parent perpetrator, the supervisor will remain in place when Dr. Valter conducts her observation. If the court did not order supervision, Dr. Valter will observe the alleged victim and alleged parent perpetrator. If visitation between the alleged victim and alleged parent perpetrator was temporarily stopped, Dr. Valter requires the attorneys to gain permission from the court for Dr. Valter to conduct observations between this parent and child. INSTRUCTION TO STOP THE EVALUATION PROCESS
e authority to instruct Dr. Valter to end all further services rests with the court, not with either party, including the party who bears the financial responsibility for payment of the evaluator’s fees (or the party’s attorney). e court must formally notify Dr. Valter that she is to discontinue the evaluation. EVALUATION PROCEDURES
After receiving the appointment order, the initial retainer, and contact information for each party, and the position papers, the evaluation will begin. The attorneys and parties should expect the evaluation to be completed about ten (10) weeks from date of the first appointments with the parties are scheduled.
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When participating in the child custody evaluation, the parents can expect to follow this schedule:
1. Dr. Valter will send a parent packet to each party. In the packet are take-home questionnaires to be completed and returned to Dr. Valter in the envelope provided or returned at the parent's first office appointment. Additionally included is a request for collateral contact information, along with authorizations to exchange information. This form should be completed and returned at the first office visit.
2. Dr. Valter will meet with each parent privately for a one-day office interview. The interview will be 9:00 am to 5:00 pm. There will be breaks, including time for lunch. The parents should remember to bring reading glasses if they are used. This office interview will include an informed consent interview, some psychological testing, and interview time. It does not matter which parent is interviewed first because Dr. Valter will have reviewed the other parent's concerns and custody proposal in the position paper.
3. Valter will schedule a thee-hour home visit at each parent's residence. Parents should plan to have the home visit for a time when the child is in their custody and all or most of the household members can be present. The home visit includes observation of the child with the parent and household members. The home visit will start with a family interview to include the parent, the children, and household members. The child will be asked to provide a tour of the
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residence, and the child will be interviewed privately during the home visit. Other household members, such as siblings, stepparents will be interviewed. If the court ordered monitored visitation at a location other
than the parent's residence, an observation of the child and parent at the court-ordered location is conducted in addition to the home visit. Under these circumstances, the child would not be observed in the parent-residence.
More interviews with the child and administration of psychological testing are scheduled if warranted.
The attorneys may provide documents and materials for review by Dr. Valter. There will be a final date to receive documents posted on Basecamp.
A final office interview with each parent is scheduled at the end of the evaluation. The time is typically between two to four hours.
There may be additional appointments or procedures necessary to gather adequate information for a comprehensive evaluation. PROMISE TO PAY FEES
The court determines the financially responsible party or parties for the child custody evaluation. Dr. Valter’s time for conducting the child custody evaluation is charged at the rate of $250 per hour.
An estimate of time to complete the evaluation is outlined in the attached estimate.
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There are additional costs and fees for incidentals. For example, if a hard copy of Dr. Valter’s file is requested, preparation of the file will be charged at $250 per hour and copies are charged at $.25 per page. An estimate is paid prior to making the hard-copy version of the file, and the full amount is paid before release.
There is a charge of $1 per mile for traveling during the evaluation for the initial 100 miles. Dr. Valter does not charge for her time for 100 miles. Traveling after the first 100 miles is charged at $1 per mile plus $250 per hour for Dr. Valter’s time.
e estimated cost of an evaluation ranges from $12,000 to $14,000 for approximately 60 hours of work. e cost can be more because it is very difficult to predict in advance the total cost of a particular evaluation as the cost increases in case complexity, raised number of collateral sources contacted and documents reviewed, and other unique factors.
The initial retainer deposit required to start the evaluation is $5000.00. Another retainer deposit of $5000 will be requested when the first retainer deposit is depleted to two hours ($500). Additional retainers will be requested and paid prior to the report submitted.
In the event any person (including children) fails to appear at the time of a scheduled appointment, the party responsible for the failure shall be obligated to pay the fee for each missed appointment. Appointments must be cancelled at least forty-eight (48) hours in advance to avoid this charge.
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The Court finds that the parties understand that the Evaluator has made no warranties or guarantees relating to the conclusions or findings of the evaluation, and that he or she will exercise independent judgment in conducting the evaluation. The fees and costs paid pursuant to this order are not contingent on results or outcome.
The court retains jurisdiction to determine the reasonableness of the evaluator's fees and costs, and to order further payment to the evaluator, or reimbursement to the parties (In re Marriage of
Laurenti, 2007, 154 Cal. App. 4th 395 and Rand v. Psychology, 2012, 205 Cal. App. 4th 1209). TESTIMONY IN COURT AND IN DEPOSITION
All testimony by Dr. Valter in connection with these proceedings, including depositions and hearings, or arising in other proceedings out of this evaluation, or involving the participants in this evaluation shall be deemed expert rather than percipient, and subject to compensation.
Testimony and deposition costs are in addition to the costs of the evaluation. Dr. Valter will make herself available for testimony at court hearings and depositions. A subpoena for appearance and a testimony retainer deposit must be served seven (7) days prior to the date for testimony. The subpoena and deposit may be served by mail or email and must include the Notice of Acknowledgement of Receipt form. Dr. Valter will not appear if the subpoena and deposit is not received seven (7) days prior to the hearing date.
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Payment for the full estimated time for testimony or deposition testimony is required before Dr. Valter testifies. The minimum retainer for one-day court testimony or deposition is $2000 (8 hours at $250 plus travel mileage at the rate of $1 per mile). A minimum retainer for a half-day charge of $1100 plus travel mileage at the rate of $1 per mile. A half-day charge is the minimum retainer for deposition or testimony. If additional time is needed, an additional retainer must be paid in advance of testimony or deposition or other work.
Time is charged while Dr. Valter is at the courthouse, whether testifying or waiting to testify, with a pro rata charge for partial hours at fifteen-minute increments.
If testimony is not required after the subpoena and retainer deposit has been received; the retainer will be refunded except for two hours ($500). A two-hour portion ($500) of the testimony retainer is nonrefundable.
If Dr. Valter is requested to review her deposition related to the above-captioned case, the attorney making that request shall furnish a transcript at no cost. e fee for review is $3.00 per page and shall be paid by cashiers check or money order, at the time the deposition is submitted for review. PAYMENT PROCEDURES
The parties understand and acknowledge: If the retainer ever falls below $500 and is not replenished by the parties within ten (10) days from notification of such fact, Dr. Valter shall be entitled to stop rendition of services and may report the situation to the
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court and seek appropriate relief. e parties shall be responsible for Dr. Valter’s reasonable attorney’s fees and costs in such an event.
Dr. Valter does not accept any form of payment with Health Insurance.
Dr. Valter accepts credit cards. Credit card payments are made online at www.MarleneValter.com. At the bottom right portion of the homepage, click “Make a Payment Online.”
Any unused potion of the retainer will be refunded after the following conditions are met: Dr. Valter’s written report has been received by the attorneys; A final decision in the litigation has been rendered; Dr. Valter has received a copy of the custody order or letter from the Court that Dr. Valter’s services are no longer required, and all outstanding fees for Dr. Valter’s services have been paid.
Dr. Valter is not required to appear for any deposition, court proceedings or at trial without advance payment of all estimated fees (in accordance with Dr. Valter’s fee schedule) for time incurred related to such testimony, including cross-examination. Fees for court testimony shall be advanced by the party issuing the subpoena in accordance with the Evaluator's fee schedule set forth herein, subject to reallocation by the Court. In the absence of such payment, Dr. Valter will have no obligation to release the report or to participate in any further matters in connection with the evaluation; and furthermore, the parties will be deemed to
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have waived their right to call Dr. Valter as a witness or to compel testimony by subpoena until payment in full is made.
Dr. Valter will provide periodic statements of services and costs to the parties and counsel. Payment shall be considered delinquent if not made within ten (10) days of the statement's mailing. Dr. Valter may suspend professional activities during any period when the parties have not kept the account current.
The possibility exists that even after a thorough examination of the issues, Dr. Valter may not be able to offer an opinion with a reasonable degree of professional certainty, although this is very rare. Neither under this circumstance nor under circumstances in which completion of the evaluation becomes either impossible or unnecessary are fees for services already rendered refunded.
Dr. Valter may divulge the name(s) of the party(s) responsible for payment of Dr. Valter’s fees to a collection agency and/or an attorney for collection if Dr. Valter’s fees, in whole or in part, are unpaid. Collection costs (usually 50% of the collected amount) will be added in addition to the amount due).
The cost of the evaluation includes all reasonable attorneys fees and costs incurred by Dr. Valter in connection with the evaluation and testimony. Such expenses shall include reasonable attorneys fees and costs incurred by Dr. Valter in connection with, or arising from, the case, including stenography, un-reimbursed travel expenses, fees paid to collateral witnesses who charge for professional time, and all other out-of-pocket expenses necessary for the evaluation process.
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The evaluator may require that the initial payment, or any subsequent payment, be made by cashiers' check or other guaranteed funds.
All fees through the completion of the evaluation shall be paid to Dr. Valter before the release of the written report and must be paid to Dr. Valter upon notification that the report has been completed. Dr. Valter will have no duty to supply a report, or to perform any further services, including but not limited to, responding to subpoenas, appearing at Court or deposition, or testifying if she has not been paid in full for her services. MISCELLANEOUS
e laws of the state of California shall govern this Agreement. Venue for any action brought hereinafter shall be in the courts of competent jurisdiction in Ventura County, California.
A facsimile or photocopy of this order shall be considered as valid as the original.
(Judge's signature appears on Page 1 of Judicial Counsel Form FL-327)
This order may be signed in counterpart. Signatures follow on the next page:
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DATED: _____________ _____________________________ Marlene W. Valter, PsyD
DATED: _____________ _____________________________Petitioner
DATED: _____________ _____________________________Attorney for Petitioner
DATED: ______________ _____________________________Respondent
DATED: ______________ _____________________________Attorney for Respondent
DATED: ______________ _____________________________Minor’s counsel (If one is appointed)
E