Reference · Family Code and Evidence Code · read 11 September 2026
Treating a child is one job. Evaluating a custody arrangement is another, and the court hands it out.
A therapist whose client is in a custody dispute will be asked for something — a letter, an opinion, a recommendation. California answers that request with two separate regimes: a child custody evaluation is a court appointment with its own training rule, its own standards and its own report, and a treating therapist is a witness with a clinical record and a privilege that has exceptions. The statutes do not stop a treating therapist from ever writing anything; they define what the writing is, and what it is not.
The two roles →The two roles
One is entered by a client. The other is entered by an order.
| The treating therapist | The child custody evaluator | |
|---|---|---|
| Who puts them there | The client, or the client’s parent, by starting therapy | The court, by order under Fam. Code §3111(a) |
| What the work is | Treatment of a client | An evaluation conducted under the Judicial Council’s standards |
| Qualification rule | The license, and the scope of practice it authorizes | §3110.5(a): the §1816 training and compliance with Rules of Court 5.220 and 5.230, declared under penalty of perjury |
| What is produced | A clinical record, and testimony if the therapist is called | A written confidential report, filed with the clerk at least 10 days before the hearing and served on the parties |
| What the court may rely on | Evidence, like any other evidence, subject to privilege | The report — but “only if it is conducted in accordance with” the Judicial Council’s standards |
| Privilege | Evid. Code §1014, unless an exception applies | Evid. Code §1017(a): none, where the psychotherapist is appointed by the court to examine |
The distinction is not a professional courtesy; it is how the Family Code is written. A court considering a custody evaluation may consider it only if it was conducted under the Judicial Council’s standards, and only a person who meets §3110.5(a) may conduct one.
The site has a case about exactly this
The custody letter is a real decision from the Board’s own record, read line by line. It is the reason this page exists, and it is worth reading before the next letter is drafted.
What an evaluation is
An appointment, a training requirement, and a report with its own rules.
§3111(a): “In a contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interest of the child.” No party appoints an evaluator, and no therapist becomes one by agreeing to write something.
§3110.5(a) makes the requirement absolute: a person may be a court-connected or private child custody evaluator “only if” they have completed that domestic violence and child abuse training and complied with those rules. The Judicial Council’s rule then requires a declaration under penalty of perjury that the evaluator meets the education, experience and training requirements and holds a license in good standing.
§3110.5(b)(1)(B) directs that the rule require all evaluators to use comparable interview, assessment and testing procedures for all parties — the structural difference from treatment, where one person is the client and the others may never be seen at all.
§3111(a): where directed, the evaluator files a written confidential report; at least 10 days before the custody hearing it is filed with the clerk and served on the parties or their attorneys and any counsel appointed for the child under §3150. §3111(b) limits who else may receive it.
§3111(a) again: a custody evaluation, investigation or assessment and the resulting report “may be considered by the court only if it is conducted in accordance with the requirements set forth in the standards adopted by the Judicial Council” — though the section does not exclude a report over nonsubstantive or inconsequential errors.
The privilege, and its exceptions
Two exceptions decide most of what a treating therapist is asked.
Evidence Code §1014 is the psychotherapist-patient privilege. Everything below is an exception to it, which means the starting position is that the therapist does not disclose.
§1016: there is no privilege “as to a communication relevant to an issue concerning the mental or emotional condition of the patient” where that issue has been tendered by the patient, by a party claiming through or under the patient, by a party claiming as a beneficiary under a contract, or by a wrongful-death plaintiff. Whether a particular custody filing has tendered it is a legal question, and not one this page answers.
§1017(a): there is no privilege “if the psychotherapist is appointed by order of a court to examine the patient” — with a narrow exception for a psychotherapist appointed at the request of defense counsel in a criminal case on a plea or mental-state defense. A person examined under a court order is not in treatment, and the statute treats them accordingly.
A treating therapist has a record, and may be a witness about what is in it. An evaluator has an appointment, a method applied to everyone, and a report the court may rely on. A letter that reads like the second but was produced in the first role is the fact pattern behind the Board case linked above.
What to do when the request arrives as a subpoena rather than a phone call is a separate question with its own page: a subpoena for your records. Who may consent to a minor’s treatment, and who may see the record afterward, is on the minor-consent tool and the records calculator.
Then what
The pages around this one.
What is in the chart
Psychotherapy notes and the record
What separates, what does not, and who may see which.
Where every figure came from
Sources.
The Family Code
- Family Code §3111, appointment of a child custody evaluator and the report
- Family Code §3110.5, who may be a child custody evaluator
- Family Code §3117, the standards the Judicial Council adopts
- Family Code §3150, counsel appointed for the child
- California Rules of Court, rule 5.220, court-ordered child custody evaluations
The Evidence Code
Quotations are the sections’ own words, read on 11 September 2026 and linked so the current text can be checked. Whether a particular case has tendered a client’s mental or emotional condition, what a specific order requires, and what any individual therapist should write are legal questions for the therapist’s own attorney or the Board’s legal resources. This page is not legal advice and does not tell anyone what to say to a court.
