The next category in the report, entitled General Allegations, contains a somewhat rambling narrative summation of some of the many accusations that Englehart and Graham have exchanged in the course of this litigation. It begins with the fact that Englehart reported that Graham scared her, and that he had talked about the Scott and Lacy Peterson case and she felt he was threatening to hurt her and the baby she was carrying at the time (Allison). However, she apparently married father after these statements were made. Allegations of drug and alcohol abuse, the incident in which Englehart took Allison to Ohio, Grahams allegedly long working hours, and various other accusations of bad parenting skills are described, but no conclusions are drawn concerning them.

The report briefly describes interviews that Dr. Curry had with Engleharts half-brother, indicating that Graham spent less time with Allison than Graham reported; with Engleharts therapist, indicating that he had diagnosed her with an Adjustment Disorder 309.28 and felt it would be in Allisons best interest to move to Ohio with mother; with Grahams mother, who reported a wonderful relationship between Graham and Allison, that Graham displayed no problems with drugs or alcohol, and that she would be available to help [Graham] with Allison in any way he would need her; and with a friend of Graham who reported that Graham loves his daughter very much and . . . is a good father.

Dr. Curry then details her observations of Englehart, Graham and Allison. She observed that Allison seemed comfortable with either parent leaving the room at the first session and offered three possible explanations: that the nesting arrangement had provided her with a feeling of stability, that the parents were cordial in interacting with each other, or that she had had a strong bond with both parents rather than one primary caretaker. Dr. Curry offered various explanations for Allisons distress exhibited in later sessions. She theorized that Allison may have felt the exchange was no longer temporary but a more lasting feeling of being away from one parent for extended stays and she has begun to experience anxiety from being separated from that parent. Noting that Allison seemed more distressed when Englehart was not present, Dr. Curry concluded that this might explain, if fathers observations are correct and mother is, consciously or unconsciously, attempting to alienate Allison from father.

Finally, the report lists recommendations, including joint legal custody, joint physical custody, if mother remains in California. [] Joint physical custody with father as primary caretaker if mother chooses to move to Ohio. If mother moves to Ohio without Allison, her visitation schedule proposal for father would be in place for Allison and mother. [] If mother chooses to remain in California, the current court rotating schedule of 2 days/3 days/2 days would continue so that Allison would benefit from having both these very good parents in her life. A detailed holiday schedule is recommended, as are courses in parenting, and alcohol and substance abuse for the parents. The report recommends that Hannah be moved to California because Hannah has only recently started a new school . . . , and because Hannah has more coping skills than her younger sister Allison, the transition for Hannah and her mother would be much easier and less of a sacrifice than what mother is asking of her youngest daughter Allison. . . . [] If mother decides to move to Ohio without Allison, then mother is making that choice of her own volition. Hopefully, mother, will place Allison first and choose what is in her daughters best interest which is to have both her parents in her life . . . .

At trial, Englehart introduced the testimony of a psychologist, Dr. Gary Balestin and a licensed clinical social worker, Rhonda Barovsky, to dispute the validity of Dr. Currys evaluation. Dr. Balestin testified that Dr. Curry had used an obsolete version of the Millon Clinical Multiaxial Inventory and had inappropriately used the Alcohol Use Inventory test, because it was designed for use on patients in alcohol treatment programs. He also stated that Dr. Curry had failed to comply with professional standards by using outdated and inappropriate tests and that she had failed to include three of the five most commonly administered tests for adults involved in custody evaluations. He concluded that Graham and Englehart each received inadequate and unprofessional evaluations of their personality from Dr. Curry. He observed that Dr. Curry is not licensed as a psychologist and that the use of the outdated test as the primary instrument upon which her diagnostic opinions are based challenges the integrity of her conclusions and produces an unstable foundation for her clinical judgment and custody recommendations.

Barovsky focused on compliance with California Rules of Court, rule 5.220,[5] which sets standards for court-ordered child custody evaluations.[6] The rule requires evaluators to describe the [p]rocedures used and the time required to gather and assess information, and to [s]ummarize the data-gathering procedures, information sources and time spent . . . . (Rule 5.220(e)(1)(A) & (e)(3)(A).) Barovsky states, There is no evidence in Dr. Currys report that she summarized these procedures. The readers do not know where the sessions were held, (office or home visit), we do not know how many sessions were held, and we do not know who was present at each session. Therefore, we cannot understand how the data was gathered and the effect the data had on the evaluation recommendations. [] Dr. Curry does not list her appointments; she merely states that she completed the evaluation over a three-week period of time consisting of twenty-eight hours . . . This one sentence is inadequate as it does not allow the court . . . to assess and compare the number of hours spent with each client, with the child, observing each parent with the child and with the collateral contacts.

Barovsky summarized her criticisms. A child custody evaluation is a snapshot of the family situation. A child custody evaluation should be thorough and the evaluator should take the time needed to address every issue. It does not appear that Dr. Curry conducted a thorough evaluation. She does not list her procedures. She did not discuss the parents history, the history of the relationship, or the history of their child-rearing practices. She provides no data that she conducted play therapy alone with the child, or that she conducted home visits. The data she provides about her parent/child observations is superficial and incomplete. She provides little data or analysis about critical issues such as domestic violence, substance abuse, or the sibling relationship. She does not conduct an analysis of the data following the guidelines set by [In re Marriage of] LaMusga [(2004) 32 Cal.4th 1072], even though a request has been made to move the child from California to Ohio. The evaluation section draws no connections between the data presented and the recommendations made so the reader has no understanding of why she makes the recommendations she does based on the data she collected.

In her objections to the trial courts tentative decision, Englehart relied on these critiques. Dr. Curry is/was not a competent, qualified professional in this case. Uncontroverted evidence at trial shows that Dr. Curry administered outdated and obsolete psychological testing on the parties, breaching ethics rules and professional standards of the American Psychological Association (APA). The uncontroverted evidence, including Dr. Currys own testimony, shows that she has never been a licensed clinical psychologist in California or elsewhere, that [the] bulk of her annual income is derived from her work as a real estate broker, and that she performed only one custody evaluation in 2005 (the one in this matter). Dr. Curry never interviewed [Graham] individually apart from the child during the course of the evaluation. Dr. Curry herself testified at trial that she did not know what sort of visitation schedule was reasonable or appropriate for a two-year-old child. Dr. Curry also committed further ethical violations and breaches of professional standards by copying and disseminating the parties psychological testing materials, raw data, and other confidential materials to counsel in open court without obtaining releases from the parties or a court order. Dr. Curry also employed inappropriate testing to assess alcohol and substance abuse by either party, and wholly failed to investigate or consider all relevant factors bearing on the childs best interest.

After trial, Barovsky submitted a second declaration in which she points out that Dr. Curry did not investigate the allegations that Graham was suicidal. She also observed that the custody plan proposed by Dr. Curry appears to be geared toward forcing the mother to remain in California rather than analyzing the data and formulating a custody plan that would be in the childs best interests given mothers move. She also criticized Dr. Curry for failing to treat each parent equally because she interviewed Graham alone but only interviewed Englehart with Allison present. Interviewing mother with the child present forced mother to take care of the child during the session and was most likely distracting for mother, not allowing her to have the intellectual freedom needed to present her issues and concerns to Curry. Interviewing mother with the child present did not protect the child from hearing mothers concerns unless mother censored herself. If mother censored herself to protect the child from being harmed by listening to negative concerns about father then mother would be unable to completely discuss all of her thoughts, feelings and issues with Curry.

Englehart argues that the trial court merely rubber stamped Dr. Currys report, and that this was an abuse of discretion. She also argues that there was no rational basis for the trial court to allow her visitation only 8 percent of the time because, when asked about that recommendation at trial, Dr. Curry stated she was not sure what is reasonable for a two-year-old. And my primary purpose and priority was the child. I think she needs both her parents in her life as much as she can have them in her life.

Curiously, Englehart does not argue that Dr. Currys report was inadmissible, but merely that it was entitled to no weight. By reference to sections of the Family Code, Rule 5.220 contains detailed qualifications for child custody evaluators, including continuing education. (Rule 5.220(g).) Since Dr. Curry is not a licensed psychologist and performed few custody evaluations, it is not at all clear that she meets these qualifications. Moreover, section 3111, subdivision (c) provides that a court appointed child custody evaluators report may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report. No such stipulation appears in the record. The copy of the report contained in the appendix is not marked as an exhibit, so it is unlikely that the report was received into evidence. Section 3111, subdivision (a) does provide that [t]he report may be considered by the court and makes no reference to admissibility. A respected practice guide states, The report may be considered by the court. But it is admissible evidence only on stipulation of all interested parties (in which event it is competent evidence on all matters contained therein). (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2006)  7:255.) We have some question as to how a court can properly consider evidence that is inadmissible. Nonetheless, Englehart has not raised these issues and we express no opinion as to their proper resolution.

Englehart relies on In re Anthony C. (2006) 138 Cal.App.4th 1493 to support her contention that the judgment is invalid because the court improperly relied on Dr. Currys report. In that case, the court considered the continued commitment of a juvenile offender past his 21st birthday. To support such a commitment, the trial court was required to find beyond a reasonable doubt that there was reason to believe that discharge of the person would be physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality. (Id. at p. 1503.) The expert opined that the juvenile had a mental disorder, but did not testify to the extent or degree of Anthonys disorder, nor did he testify that it was incurable, or that Anthonys disorder was a repetitive compulsive disorder. (Id. at p. 1506.) The court held that the doctors opinion that the juvenile posed some risk did not support the necessary finding that he had serious difficulty controlling his behavior. (Id. at p. 1507.) The court further found that there was no testimony Anthonys mental abnormality caused him serious difficulty controlling his sexually deviant behavior. (Ibid.) The court concluded that the evidence at trial fails to support [the required] finding in the absence of a good measure of speculation and conjecture. (Id. at pp. 1508-1509.)

In arguing that the trial court erred by considering Dr. Currys report, amici rely on In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 (Seagondollar), in which the court held that the trial court erred by denying a continuance so that the husband could provide rebuttal testimony to the conclusions of the court appointed evaluator, Dr. Adam. Dr. Stahl^[[7]] would testify Dr. Adam did not consider all relevant information and did not comply with California Rules of Court, rules 5.220 and 5.225. According to Timothys counsel, Dr. Stahl would tell the court there are items and circumstances missing from that report that are essential for the court to be able to . . . make its decision. . . . Had the trial court granted a brief continuance to permit Dr. Stahl to testify, the outcome might have been different. (Id. at p. 1131.) Amici Dr. Philip Stahl, Judith Wallerstein and D. Kelly Weisberg filed a brief in this case in which they urge the court herein to extend the decision in Seagondollar and require judges to disregard and give no weight to child custody evaluations that do not meet the requirements of Rule 5.220 or meet the generally accepted procedures in the field of custody evaluations that have been professionally established.[8]

Both Anthony C. and Seagondollar present issues not before us. The trial courts judgment must be affirmed if substantial evidence supports its conclusion as to the childs best interest and if it is correct on any basis, regardless of whether such basis was actually invoked. (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.) Where a statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) Unlike the record in Anthony C., the record in this case contains substantial evidence in addition to Dr. Currys evaluation on which the trial court based its conclusion that with Englehart moving to Ohio, it was in Allisons best interests that she remain in California with Graham. At the time of trial the custody and dissolution litigation had been ongoing for approximately two years. The trial court had a lengthy record of conflicting applications, supporting documents and its own observations to guide its decision. The court more than once noted its reliance on other evidence and its awareness of the deficiencies in Dr. Currys report. During the course of Dr. Currys trial testimony, the court overruled an objection by Engleharts attorney with the observation, I look forward to your closing argument raising this as an additional reason why you want me to question the credibility of the evaluation. In its tentative statement of decision, the court stated, Despite legitimate professional concerns as to the procedure utilized by the court appointed child custody evaluator, Dr. Currys observations and recommendations were substantially supported by the courts own observations. (Italics added.)

Additionally, the direct testimony contained in the parties declarations support joint custody with Graham as the primary caretaker.[9] In addition to his own declaration, Graham submitted declarations from one of Allisons teachers, Grahams mother, and the mother of one of Allisons friends all attesting to Grahams good parenting skills. Allisons teacher stated that while Allison does not talk much about her mother, and hardly ever of Hannah, Graham is an awesome dad and that Allison clearly loves her father. She is always happy to see him and gives him big hugs and kisses. Grahams mother stated that Graham has such patience with Allison, is mindful of Allisons health, and that he continues to remind and persuade Allison to call and talk to her mother. She worried that Allisons time in Ohio may be disruptive to her, and fear that her half-sister, Hannah or her maternal grandmother are too rough, citing the fact that Allison began talking to her stuffed animals about hitting people the last time she returned from a visit to Ohio. The parent of Allisons friend stated that she has witnessed not only Justins dedication, patience, and sincere love for his daughter, but also his growth as a father and his impressive efforts to continually improve as a father and establish a rich life for Allison, with a strong network of friends.

And unlike the situation in Seagondollar, Englehart was permitted to, and did, present rebuttal testimony to attack the validity of Dr. Currys report. But while the rebuttal testimony presented by Englehart attacked the validity of Dr. Currys procedures, neither expert opined that Dr. Currys conclusions were mistaken, nor did Englehart provide any other expert testimony to the effect that another arrangement would have better served Allisons interests. In Lester v. Lenanne (2000) 84 Cal.App.4th 536, 575, the father argued that a mediators custody recommendation, which had been adopted by the trial court, was biased, arbitrary, or both.  The appellate court rejected this argument for several reasons. First, the fact that [the mediator] had seen the parties twice put her well ahead of [fathers] purported expert, . . . who had not seen them at all . . . . (Id. at p. 576.) The court also upheld the trial courts ruling because there was no evidence before the judge that [the mediators] recommendation was wrong. [Fathers experts] declaration, which was all that [father] proffered (aside from his own self-serving declarations), ruminated abstractly on the theoretical advantages of [birdnesting] but made no reference to the facts of the case. (Ibid.) The same observations may be made here. Engleharts experts did not meet with the parties but merely read and critiqued the report produced by Dr. Curry. And Englehart did not produce an expert opinion that contradicted Dr. Currys conclusions.

[W]here, as here, the appellants claim is that substantial evidence fails to support an order of the trial court, our task is to determine whether any substantial evidence exists in support of the order. Where there is conflicting evidence, the evidence that supports the order is accepted as true, and that evidence which is unfavorable is discarded. The trial courts determination of credibility is binding on this court. We may neither reweigh the evidence nor reevaluate the credibility of witnesses. (In re Marriage of Roe (1993) 18 Cal.App.4th 1483, 1488, disapproved on other grounds by In re Marriage of Burgess, supra, 13 Cal.4th at p. 38, fn. 10.) In his tentative decision, the trial court stated that Dr. Currys recommendations were in line with his own observations. The custody order also reflected that the paramount need for continuity and stability in custody arrangementsand the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretakerweigh heavily in favor of maintaining ongoing custody arrangements. (In re Marriage of Burgess, supra, at pp. 32-33.) Although Dr. Currys report may have been entitled to little weight, the criticisms go only to the weight that should be given the report and not to the larger question of whether the trial courts decision was supported by substantial evidence.[10] Since substantial evidence supports the trial courts custody order, the order must be affirmed.

B. Child support

[T]he father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the childs circumstances. ( 3900.) [T]he court may order either or both parents to pay an amount necessary for the support of the child. ( 4001.) Section 4057 provides that (a) The amount of child support established by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct amount of child support to be ordered. [] (b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case . . . . Factors to be considered by the court in determining whether the presumption is rebutted include where [a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: [] (A) Cases in which the parents have different time-sharing arrangements for different children. [] (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. . . . ( 4057, subd. (b)(5).)

The judgment orders Englehart to pay Graham child support in the sum of $610 per month, one-half on the 1st and one-half on the 15th day of each month. . . . Englehart argues that the award is unjust and inappropriate given the substantial disparity in their incomes. Graham has a monthly income of $9,486 and the DissoMaster computations assume that Englehart earns $737 per month, all of which is imputed since she is currently attending school to obtain a nursing certificate. Yet, Englehart was ordered to pay Graham $610 monthly in child support. The basic guideline support generated by the computer program, reflecting the disparate incomes and the eight percent custody time awarded to Englehart, is a payment by Englehart to Graham of $32 per month, but to this amount the court added $578 per month, one-half of the monthly cost of child care. Englehart contends that the resulting total payment is unjust, inappropriate and beyond her means. More specifically, she argues that the trial court improperly ordered her to pay one-half of the daycare costs, failed to award her a hardship exemption to account for support of her other child, Hannah, and that it erroneously failed to give her a low income adjustment because she earns less than $1,000 a month.

There is apparent merit to these contentions. As to the first issue, Englehart asserts that the question of child care expenses was not included in the joint statement of contested issues that defined the issues for trial, to which Graham responds that Englehart stipulated to the addition of the child care costs. However, Graham directs us only to a passage in the reporters transcript where Engleharts counsel agreed that $1,156 was being paid each month for Allisons day care. There was no agreement that Englehart should bear half the burden of paying that amount. As to the hardship deduction, the courts calculations did not include a deduction for Engleharts cost of supporting Hannah, although such a deduction is authorized by sections 4059, subdivision (g) and 4071, subdivision (a)(2). These sections allow for a deduction in child support for [t]he minimum basic living expenses of either parents natural or adopted children for whom the parent has the obligation to support from other marriages or relationships who reside with the parent. And Englehart is correct that the courts calculations make no provision for a low-income adjustment, although section 4055, subdivision (b)(7) provides, In all cases in which the net disposable income per month of the obligor is less than one thousand dollars ($1,000), there shall be a rebuttable presumption that the obligor is entitled to a low-income adjustment.

Graham argues that none of these issues can be considered on appeal because Englehart failed to raise any of them in the trial court. For better or worse, California child support law now resembles determinate sentencing in the criminal law: The actual calculation required of the trial judge has been made so complicated (see generally, Fam. Code, 4055) that, to conserve judicial resources, any errors must be brought to the trial courts attention at the trial level while the error can still be expeditiously corrected. (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144; see also In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1138.) However, in her objections to the proposed statement of decision, Englehart did object to the proposed revised child support order

on the ground that the amount of child support ordered exceeds respondents imputed income after taxes. The child support order is arbitrary, capricious, not supported by substantial evidence or law, and is designed to punish resp[o]ndent for returning to her family home in Ohio.

While Engleharts objection did not raise any of the specific issues she now asserts on appeal, it did alert the trial court to the need to evaluate the reasonableness of the amount of child support generated by the statutory formula incorporated in the DissoMaster formula and to determine whether the presumption of its correctness had been overcome. ( 4057, subd. (b)). In City and County of San Francisco v. Miller (1996) 49 Cal.App.4th 866, the trial court applied the low income adjustment provided by section 4055, subdivision (a)(7) to reduce a child support award where the guideline support calculation left father with monthly income of only $14. The county appealed, arguing that the trial court did not have the discretion to lower the support payment from the guideline amount. The appellate court soundly rejected this argument, noting that [a]lthough the amount of child support established by the formula under section 4055 is presumed to be the correct amount, that presumption is a rebuttable presumption and may be rebutted by evidence showing that [a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case.  (Id. at p. 869.) The court further rejected the countys argument that low income is not a special circumstance,  observing that fathers income was not only low, he had virtually nothing left after his wages were garnished and his rent was paid in which to meet his monthly expenses. Moreover, [father] maintains physical responsibility of the children for 20 percent of the time. Presumably he must attempt to feed them during this period. Given these circumstances, the court did not abuse its discretion by reducing [fathers] support obligation to zero and urging him to locate a roommate in order to reduce his monthly expenses. (Ibid.)

Although in the present case the trial court failed to adjust the formula child support amount to reflect the special circumstances of the parties, the reasoning of Miller is equally applicable. Although Englehart is living with her parents in Ohio, she must have some money with which to care for herself, her other daughter, and Allison when they are together. The courts support order leaves her with virtually nothing, while there is no indication that Graham is unable to care for himself and Allison with his monthly income. Moreover, the court has an obligation to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy. ( 3020, subd. (b).) Engleharts continuing contact with Allison will entail long-distance travel at some expense, for which no funds will be available after paying Graham virtually all of her imputed, and perhaps nonexistent, income. Despite Engleharts objection, the record reflects no consideration of the plight created for Englehart by the adoption of the amount produced by the DissoMaster adjusted by adding one-half the child care costs to Engleharts monthly obligation. Certainly the court did not explain why it did not find [a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case. ( 4057, subd. (b)(5).) In view of the extreme disparity in the income of the two parties and the resulting outcome depriving Englehart of virtually any expendable income, we conclude that the trial court abused its discretion in failing to consider these circumstances.

Although Englehart previously failed to raise the specific statutory adjustments she points to on appeal, since the matter must be remanded for further consideration under section 4057, the trial court will have the opportunity to consider these factors in determining a just support order.[11]

Disposition

The judgment is affirmed insofar as it determines the custody of Allison, and is reversed with respect to the determination of child support and the matter is remanded for further proceedings consistent with this opinion.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.