This is a motion which was written by national protective parents attorney Richard Ducote in an effort to get the court to do the minimum required by law to investigate the abuse. 

POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE JUDGMENT;
MOTION TO APPOINT A NEW EVALUATOR; AND MOTION FOR NEW TRIAL

Petitioner, CINDY hereby submits her points and authorities in support of her motion to set aside the judgment filed on August 27, 2004, her motion to appoint a new custody evaluator and her motion for a new trial. I.

HISTORY OF THE CASE

The parties resided in Hawaii at the time of their dissolution.

The Judgment Granting Absolute Divorce and Awarding Child Custody (hereinafter "Dissolution Judgment") was filed in the Family Court of the Second District, State of Hawaii on August 28, 2002. This judgment provided that "upon the filing of this judgment, jurisdiction shall automatically transfer to the San Diego, California area for all purposes, including enforcement and modification." [See, Judgment Granting Absolute Divorce and Awarding Child Custody, page 15, paragraph 27.] On March 28, 2003, CINDY filed a Complaint to Establish Foreign Judgment in this Court and California assumed jurisdiction over this case. CINDY filed an Order to Show Cause on March 5, 2004, as part of a DYRO action alleging that Respondent ERIC had sexually molested their minor child, DAMON. ERIC fiIed an Order to Show Cause on April 3, 2003 requesting a change in custody. On June 10, 2003, the Court appointed Raymond G. Murphy, Ph.D. to perform an evaluation to assess the children's relationship with their parents, any contact in the context of these allegations, and to make recommendations to the Court regarding those relationships. [Reporter's Transcript, June 10, 2003 hearing, P. 3, L. 13-16.] Dr. Murphy issued his report on October 24, 2004. Glaringly absent from Dr. Murphy's report was any indication that he interviewed the minor children, Child Protective Services or law enforcement regarding the sexual abuse allegations. The Order to Show Cause hearing was held on January 22, 2004. The Findings and Order After Hearing was filed on August 27, 2004. At the hearing, the Court found that CINDY did "not proved by a preponderance of the evidence that the Respondent sexually molested, abused or assaulted Damon or that he touched him inappropriately any other way." [Reporter's Transcript, January 22, 2004 hearing, P. 1, L. 11-15.] The Court further found after listing all of the evidence he reviewed, including the Report from Dr Murphy, that the "weight of the evidence suggests it's unlikely that Respondent molested or sexually battered Damon... but I do not find that I have sufficient evidence to find that it did not, in fact, occur." [Reporter's Transcript, January 22, 2004 hearing, P. 1, L. 28- P. 2, L. 2-3.} Based upon the following points and authorities, CINDY respectfully requests that the Court set aside the judgment entered August 27, 2004 for the reason set forth below, that a new evaluator be appointed to investigate and complete a sexual abuse assessment,or in the alternative that a full evidentiary hearing be set for the specific purpose of determining through credible evidence whether or not ERIC engaged in inappropriate sexual behavior with the parties' minor child, Damon.


II.

POINTS AND AUTHORITIES

A. THE COURT MAY UPON MOTION OF EITHER PARTY SET ASIDE ANY VOID JUDGMENT OR ORDER

California Code of Civil Procedure § 473(d) provides: "(d) The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order." A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction relates to the inherent authority of the court involved to deal with the case or matter before it. Lack of jurisdiction in this fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. In a broader sense, lack ofjurisdiction also exists when a court grants relief which the Court has no power to grant. Where, for instance, the court has no power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites, the court acts without jurisdiction in this broader sense. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 [62 Cal.Rptr.29 884.] The consequences of an act beyond the court's jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. An act beyond a court's jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. In contrast, an act in excess of jurisdiction is valid until set aside, and 'N parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. (People v. Ruiz (1990)217 CalApp.3d 574, 584 [265 Cal.Rptr. 886.] Whether waiver or estoppel will actually be applied turns largely on the degree of the procedural irregularity and whether the court's act violated a comprehensive statutory scheme or offended public policy. (People v. Mendez(1991)234 Cal.App.3d 1773, 1778- 1784 [286 Cal.Rptr 216] [reducing felony conviction to misdemeanor and sealing conviction record], In re Marriage of Goodarzirad(1986)185 Cal.App.3d 1020, 1024- 1027 [230 Cal.Rptr. 203] [stipulation of parties to deprive court of authority to modify child custody and visitation orders in dissolution proceeding]; People v. ]3lakeman (1959) 170 Cal. App. 2d 596, 598 [339 P. 2d 202] [banishment as condition of probation].) CINDY hereby moves this Court to set aside the judgment entered on August 27, 2004 and served on her on September 6, 2004. The request is based upon the fact that the Court acted in excess of its jurisdiction when it failed to follow the procedures set forth in Family Code §3118. As stated above, on June 10, 2003 the Court appointed Raymond G. Murphy, Ph.D., as the evaluator in this matter. The Court ordered Dr. Murphy "to assess the children's relationship with their parents, any contact in the context of these allegations, and to make recommendations to me regarding those relationships. . ." [Reporter's Transcript, Page 3, Lines 13-16.] The Court did not articulate what it meant by "these allegations". However, the allegations that were the center of the custody hearing were allegations that ERIC had sexually molested the minor child, Damon. The only logical interpretation of the Court's order is the evaluator was ordered to investigate the child molestation allegations. The Court's authority for ordering the evaluation lies in Section 3118 of the California Family Code. Section 3118 provides inpertinent part as follows:

1. "In any contested proceeding involving child custody or visitation rights, where the court has appointed a child custody evaluator or has referred a case for a full or partial court-connected evaluation, investigation, or assessment, and the court determines that there is a serious allegation of child sexual abuse, the court shall require an evaluation, investigation, or assessment pursuant to this section. When the court has determined that there is a serious allegation of child sexual abuse, any child custody evaluation, investigation, or assessment conducted subsequent to that determination shall be considered by the court only if the evaluation, investigation, or assessment is conducted in accordance with the minimum requirements set forth in this section in determining custody or visitation rights, except as specified in paragraph (1). For purposes of this section, a serious allegation of child sexual abuse means an allegation of child sexual abuse, as defined in Section 11165.1 Penal Code, that is based in whole or in part on statements made by the child to law enforcement, a child welfare services agency investigator, any person required by statute to report suspected child abuse, or any other court- appointed personnel, or that is supported by substantial independent corroboration as provided for in subdivision (b) of Section 3011.
   
   
2. The evaluator or investigator shall, at a minimum, do all of the following:
   1. Consult with the agency providing child welfare services and law enforcement regarding the allegations of child sexual abuse, and obtain recommendations from these professionals regarding the child's safety and the child's need for protection.
      
      
   2. Review and summarize the child welfare services agency file.
      
      
   3. Obtain from a law enforcement investigator all available information obtained from criminal background checks of the parents and any suspected perpetrator that is not a parent, including information regarding child abuse, domestic violence, or substance abuse.
      
      
   4. Review the results of a multidisciplinary child interview team (hereafter MDIT) interview if available, or if not, or if the evaluator or investigator believes the TvIDIT interview is inadequate for purposes of the evaluation, investigation, or assessment, interview the child or request an MDIT interview, and shall wherever possible avoid repeated interviews of the child.
      
      
   5. Request a forensic medical examination of the child from the appropriate agency, or include in the report required by paragraph (6) a written statement explaining why the examination is not needed.
      
      
   6. File a confidential written report. . This report shall include, but is not limited to, the following:
      1. Documentation of material interviews, including any MDIT interview of the child or the evaluator or investigator, written documentation of interviews with both parents by the evaluator or investigator, and interviews with other witnesses who provided relevant information.
         
         
      2. A summary of any law enforcement investigator's investigation, including information obtained from the criminal background check of the parents and any suspected perpetrator that is not a parent, including information regarding child abuse, domestic violence, or substance abuse.
         
         
      3. Relevant background material, including, but. not limited to, a summary of a written report from any therapist treating the child for suspected child sexual abuse, excluding any communication subject to Section 1014 of the Evidence Code, reports from other professionals, and the results of any forensic medical examination and any other medical examination or treatment that could help establish or disprove whether the child has been the victim of sexual abuse.
         
         
      4. The written recommendations of the evaluator or investigator regarding the therapeutic needs of the child and how to ensure the safety of the child.
         
         
      5. A summary of the following information: whether the child and his or her parents are or have been the subject of a child abuse investigation and the disposition of that investigation; the name, location, and telephone number of the children's services worker; the status of the investigation and the recommendations made or anticipated to be made regarding the child's safety; and any dependency court orders or findings that might have bearing on the custody dispute.
         
         
      6. Any information regarding the presence of domestic violence or substance abuse in the family that has been obtained from a child protective agency in accordance with paragraphs (I) and (2), a law enforcement agency, medical personnel or records, prior or currently treating therapists, excluding any communication subject to Section 1014 of the Evidence Code, or from interviews conducted or reviewed for this evaluation, investigation, or assessment.
         
         
      7. Which, if any, family members are known to have been deemed eligible for assistance from the Victims of Crime Program due to child abuse or domestic violence.
         
         
      8. Any other information the evaluator or investigator believes would be helpful to the court in determining what is in the best interests of the child." [Emphasis Added.]

As will be shown below, the report submitted by Dr. Murphy was woefully inadequate and did not satisfy the requirements of Section 3118. Consequently, the Court did not have the authority to accept it as evidence. The procedural protections of Section 3118 are calculated to protect children who are victims of child abuse. This not only reflects a substantial public interest, it is the paramount concern of the entire proceeding. Under the circumstances the principles of waiver or estoppel should not apply and the judgment entered on August 27, 2004 should be set aside and a new evaluation ordered that complies with Section 3118. This is necessary to ensure that Damon and his siblings have the opportunity to be interviewed by a professional trained in sexual abuse assessment. for the specific purpose of determining whether or not ERIC has engaged in inappropriate sexual behavior by climbing into the child's top bunk bed, rubbing his body against the child's body resulting in what the child described as the "hard thing" pushing against him and then getting him wet, and then laying next to the child in bed. Damon first reported this on February 3, 2003, after a weekend visit with ERIC, and has since described this as a recurring event in his father's bed. [See Petitioner's Responsive Declaration filed November 7, 2003]. Ry, the parties' 9 year old son, has confirmed witnessing his father climbing up into the bunk and hearing his father doing something with Damon from his lower bunk bed. His reports corroborate his brother's reports. Damon also reported feeling the same hard thing countless times while being bounced up and down on his father's lap during the day. Both Ev (Damon's 12 year old brother) and Ry (now 10 years old) were witnesses to these occurrences and can corroborate Damon's accounts. Were this a case involving a non-family member, and a court wanted to determine if in fact these things were done to the six year old child, Damon would testify and described what happened, Ry and Ev would testify as to what they observed, and any other corroborative testimony would be presented by competent witnesses through admissible evidence. Then, the person accused would present admissible evidence to refute the charge. The court would then assess credibility, make the inferences appropriate under the circumstances, and then render findings of fact. No one would questions the validity or appropriateness of that fact-finding process. However, because this is a domestic relations matter, the Court has been positioned to decide this starkly factual question based on an extremely flawed paradigm premised exclusively on reading reports from professionals purporting to make "factual" determinations for which they have no competence, or in ways which violate the Family Code and the applicable ethical standards and guidelines. In other words, there is no conceivable way for the Court to accurately determine if ERIC. was acting inappropriately with Damon in the bunk bed based upon the written material submitted to the Court. Given the central importance of this factual question to all custodial/visitation rulings the Court is to make, the Court must first have a report that complies with the requirements of Family Code § 3118 and then a complete and full evidentiary hearing in order to fully safeguard the children's best interest. Raymond G. Murphy, Ph.D. submitted a report to the Court that did not meet the requirements of Section 3118. Although Dr. Murphy may be a good psychologist in other respects, his assessment in this case was gravely deficient in crucial details, and was incapable of determining whether the abuse occurred. First, the Abel Test of Paraphillas he utilized is a discredited and inadmissible device for determining whether a particular person is a child molester. [People v. Franks, 761 N.Y.S. 459, 195 Misc.2d 698 (2003); U S. v. Birdbill, 24312 F.Supp.2d 1128 (D.Mont.2003); State v. Spencer, 459 S.E.2d 812 (N.C. 1995); Leftwich v. State, 538 S.E.2d 779 (Ga.App.2000); US. v. Whitehorse, 177 F.Supp.2d 973 (D.S.D.2001). See also, In re Mark C., 7 Cal. App.4th 433 (4th Dist. 1992).] Furthermore, his complete failure to interview Damon or his brothers about the father's activity in his bed or on his lap and refusing to actually address the abuse question is a gross deviation from acceptable practices by psychologists performing such evaluations. [See Declaration of Stephen E. Doyne, Ph.D. filed concurrently herewith.] Furthermore, Dr. Murphy failed to make any of the collateral contacts supplied to him by CiNDY, and otherwise neglected vital data such as the Child Protective Services investigation. He violated Family Code § 3118 by not consulting with the Child Protective Services investigator and the law enforcement investigator and by not reporting their disposition or recommendations on the case. His contact with ERIC'S criminal defense attorney, with whom he has a long-standing professional relationship is also especially troublesome. [See Declaration of Cindy , filed concurrently herewith.] One of only two collateral contacts made by Dr. Murphy was with Jaclyn Gang, Ph.D. Dr. Gang was designated as Damon's therapist by Dr. Murphy and is a personal friend of Dr. Murphy's. Dr. Murphy reports that he spoke with her on two occasions and that she reported she had not been seeing Damon for a lengthy period of time, but she "did not note any indicators" that would suggest child abuse. Dr. Gang does not report that she interviewed Damon regarding the abuse allegations. She decided that no molestation had occurred because Damon did not "act traumatized". There is no such traumatization test, especially given the nature of the particular form of child abuse reported by Damon. Different children react to abuse differently. Some victims show no particular emotional symptoms. [See, Myers, Evidence in Child Abuse and Neglect Cases, 3d Ed. (1997), 42.] Dr. Gang's reliability as the designated therapist for Damon has been seriously diminished since she has created a prohibited conflict of interest by entering into a professional relationship with ERIC [See Declaration of Cindy filed concurrently herewith and the Ethical Guidelines of the American Psychological Association, attached hereto as Exhibit "A" and incorporated herein by reference. Consequently, her opinions are unreliable and fatally tainted. CINDY respectfully requests that Dr. Gang be discharged as Damon's therapist and that a new therapist be appointed who specializes in treating children who are victims of child abuse. Another example of the flawed process discussed above is the report of Alison Clarke-Stewart submitted to the Court by ERIC. Dr. Clarke-Stewart purports to be an expert in "child development", "parental divorce", and "child suggestibility." Without having interviewed a single person, most importantly Damon and Ry, she actually writes in a July 23, 2003 report that it is her "opinion" that what Damon felt on his back was "the tubular metal bed of his bunk bed scraping across his back, as his dad took him out of his bed to go to the toilet." Furthermore, in the list of documents she did review, glaringly absent are the reports from the police arid the child protection authorities. In no judicial context would any such purported "expert" be allowed to opine as to what items the child felt pushing into his back. Damon can describe what he felt pushing into his back either directly to the Court or in an appropriate interview conducted by a competent evaluator or therapist. There have been no documented cases of such bed bars spontaneously getting wet. Even without the benefit of testimony from Damon, the Court rightly noted that the explanation proffered by Dr. Clark-Steward and Respondent makes little sense. [See Reporter's Transcript, January 22, 2004 hearing, pp. 4-6.] The ultimate conclusions reached by the Court in this case were the result of the misdirection generated by some of the mental health professionals and minor's counsel. Minor's counsel has asserted himself as a fact- finder/investigator/attorney/expert. Yet, he did not interview Damon, his own client, about his father's activities. Minor's counsel admits in his report dated November 11, 2003 that he did not "specifically ask Damon if his father had molested him." The only proper role for minor's counsel in this case is to present evidence and offer legal argument based on the evidence, just as any other attorney would do. However, it is impossible for him to do that in this case because his fact-finding consists of relying on Dr. Murphy's evaluation and Dr. Gang's therapy sessions, neither one of which addressed the issue of abuse with Damon. Therefore, he should not be writing reports to the Court and offering his own opinion about what happened and what the Court should do. [American Bar Association Standards of Practice for Lawyers Representing Child in Custody Cases, 37 Fam.L.Q. 129 (2003)j To allow minor's counsel to influence the Court's fact-finding regarding the abuse issue by intejecting his own inconsequential opinion, and by re-cycling the defective opinions of other mental health professionals is considered a grave mistake. [See, Richard Ducote, Guardians AdLitem in Private Custody Litigation: The Case Jbr Abolition, 3 Loyola J. of Pub. Int. L. 106 (2002); Raven C. Lidman, Betty Hollingsworth, The Guardian Ad Litem in Child Custody Cases: The Contours of our Legal System Stretched Beyond Recognition, 6 Geo. Mason L Rev. 255 (1998).] Furthermore, minor's counsel should not be threatening CINDY to coerce her into forgetting about the abuse her son has described to her. [See Declaration of Cindy filed concurrently herewith.] C!NDY submits the declaration of Stephen B. Doyne, Ph.D., a respected clinical psychologist with a specialty in conducting custody evaluations. Dr. Doyne frequently teaches mental health professionals across the State of California in the area of child abuse assessment and treatment and has qualified as an expert witness in Family Court in San Diego County and is frequently appointed as an evaluator in this type of case. Dr. Doyne offers the opinion that the standard of care in this type of assessment is for the child to be interviewed by the evaluator or therapist regardless if they have been previously interviewed. He further declares that he knows of no research that supports an assessment without asking the child directly. He states that he can only offer a clinical opinion based upon the consistency or inconsistency of the child's verbal report, Based upon Dr. Doyne's review of the standard of care, it is obvious that the evaluation performed by Dr. Murphy was below that standard of care acceptable in the community. Therefore, the Court did not have credible, reliable evidence before it when it reached the decision as set forth in the Findings and Order After Hearing filed on August 27, 2004 and because the report did not comply with the requirements of Family Code § 3118, the Court did not have the power to accept it as evidence.

B. IN CONSTRUING STATUTES WE MUST DETERMINE AND EFFECTUATE LEGISLATIVE INTENT

To analyze a statute properly it is important to distinguish between the mandatory and discretionary portions of the statute. That is, it is important to distinguish between the "shall's" and the "may's. [L.A. City Dept of Children etc. v. Superior Court, 51 Cal. App 4' 1257 [59 Cal.Rptr.2d 613.] Section 3118 states that "where the court has appointed a child custody evaluator or has referred a case for a full or partial court-connected evaluation, investigation, or assessment, and the court determines that there is a serious allegation of child sexual abuse, the court shall require an evaluation, investigation, or assessment pursuant to this section. When the court has determined that there is a serious allegation of child sexual abuse, any child custody evaluation, investigation, or assessment conducted subsequent to that determination shall be considered by the court only if the evaluation, investigation, or assessment is conducted in accordance with the minimum requirements set forth in this section in determining custody or visitation rights." The language of the statue is mandatory. Therefore, the Court has no discretion to act contrary to the statute. When the language of a statute is clear and unambiguous, there is no need for construction or resort to the legislative history, and the court should apply its plain meaning. (Lungren v. Deukme/ian (1988)45 Cal. 3d 727, 735; Great Lake Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996,, 1010.) The language of Section 3118 is clear, if the Court appoints an evaluator and determines that there is a serious allegation of child sexual abuse, then it shall require an evaluation, investigation or assessment pursuant to Section 3118. Furthermore, the statute states that if the shall only consider the evaluation if it satisfies the minimum requirements of the statute. The Court in the instant case took the sexual abuse allegations seriously and appointed Dr. Murphy toevaluate those allegations. Once that happens, the Court is mandated to follow the procedure set forth in Section 3118. The evaluation must comport to the requirements of the statute. If it doesn't, it cannot be accepted. The Court acted in excess of its jurisdiction by accepting the evaluation of Dr. Murphy when Dr- Murphy did not interview the child, the child's siblings or the Child Protective Services and law enforcement investigators as required by Section 3118. Therefore, the motion to set aside the judgment should be granted.

III.  CONCLUSION

Based upon the above CINDY respectfully requests that the Court set aside the Judgment entered on August 27, 2004 and appoint a new, qualified evaluator to investigate and assess the sexual abuse allegations. In the alternative, CINDY moves this Court for a full evidential hearing for the purpose of determining whether or not ERIC has engaged in inappropriate sexual behavior. Dated: September 18, 2004