FAMILY RULE 1: GENERAL INFORMATION
D. CASE ASSIGNMENT
G. SERVICE OF ALTERNATE DISPUTE RESOLUTION INFORMATION
H. FILING REQUIREMENTS
I. PREPARATION OF ORDERS
J. SERVICE OF SUMMONS BY PUBLICATION OR POSTING
- K. DEFINITION OF SOUTH BAY COUNTIES
- L. ONE SETTING PER CALENDAR CALL AND CONFLICTS
- M. MEET AND CONFER REQUIREMENTS
These Rules govern cases in the Family Law Division, which hears all matters concerning the Family Code or related matters, except for termination of parental rights and adoptions.
If any attorney, a party represented by an attorney, or a self-represented party, fails to comply with any of the requirements of these Rules, the Court, on motion of a party, or on request by FCS, or on its own motion, after notice and the opportunity to be heard, may strike out all or any part of any pleading of that party, dismiss the action or proceeding or any part of the action or proceeding, enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, including monetary sanctions to the Court, and may order that party or his or her attorney to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees.
The Family Law Division currently operates in four courthouses:
North County: 605 W. El Camino Real, Sunnyvale, CA 94087
Central County: 170 Park Avenue, San Jose, CA 95113
South County: 301 Diana Avenue, Morgan Hill, CA 95037
Notre Dame: 99 Notre Dame Avenue, San Jose, CA 95113
All new actions presented for filing in the Family Law Division must be accompanied by a Declaration of Residence (attached local form FM-1051 ). A party may only request to transfer a case from one courthouse to another by filing a noticed motion for hearing in the Department of the Supervising Judge based upon a showing of extreme hardship to one or both parties. The Supervising Judge or Presiding Judge, however, retains the discretion to assign a case to another courthouse for all purposes, discussion, hearing, and/or trial.
(1) DIRECT CALENDAR
New family law cases, except those subject to subsection (3) below, are randomly assigned to a judicial officer for all purposes. The judge in that department is the All-Purpose Judge (APJ). Upon the filing of a new case, the clerk shall provide the Petitioner notice of the case assignment on the Family Law Notice (attached form FM-1050 ). If a case is sent for trial to the Civil Division based on its expected length or other reasons, the APJ shall still decide all issues up to trial, including any ex parte requests and motions to continue the trial. All filed documents must contain the name of the assigned APJ and department.
(2) CASES HEARD BY COMMISSIONERS
In some proceedings assigned to a family law department, except those subject to subsection (3) below, the parties may be asked to stipulate that their matter be heard and decided by a Commissioner of the Superior Court, acting as a temporary judge pursuant to California Constitution, Article VI, §§ 21 and 22 and Code of Civil Procedure Code § 259(e), either for All Purposes or for a Limited Purpose. Before the first hearing before a Commissioner who will hear that case for all purposes, the Court will provide, the parties the Stipulation for Court Commissioner to Act as Temporary Judge for All Purposes (attached form FM-1112 ). The refusal of a party to stipulate to a Commissioner acting as an All Purpose temporary judge will lead to reassignment of the case to an APJ in either the San Jose or Sunnyvale Courthouse, and in most cases will result in a continuance of the matter to another date. If a party declines to stipulate to a Commissioner acting as a Limited Purpose temporary judge, in most cases the hearing will be delayed untill the APJ is able to hear the matter.
(3) THE CHILD SUPPORT COMMISSIONERS
As provided by statutes or upon stipulation, the Child Support Commissioners shall hear all Title IV-D support cases; U.I.F.S.A., Department of Child Support Services (DCSS) paternity, custody and visitation issues raised in IV-D cases as provided by law, support enforcement, and welfare reimbursement cases, as well as other family law matters upon assignment.
(4) CASES INVOLVING EMPLOYEES
If a Court employee or deputy sheriff working at a courthouse in the Family Law Division, or a member of his or her family, is a party to a Family case, the Supervising Judge of the Family Law Division shall transfer the case to a different Family courthouse or the Civil Division for assignment.
All ex parte applications for orders must be filed in the courthouse in which the APJ assigned to the case presides, except for domestic violence restraining orders. All initiating complaints and fee waivers in cases involving the Department of Child Support Services must be filed at the Notre Dame Courthouse. All other documents, including domestic violence restraining order applications, may be filed or submitted (and the restraining orders picked up) at any of the four operating courthouses regardless of the location of the case.
The following abbreviations are used throughout the Family Court Rules.
APJ = All-Purpose Judge Cal. Rules = California State Rules of Court CLETS = California Law Enforcement Telecommunications System CRC = Family Centered Case Resolution Conference CSC = Custody Settlement Conference DCSS = Department of Child Support Services EPRO = Emergency Protective Restraining Order FC = Family Code FCS = Family Court Services FCSO = Family Court Settlement Officer JCC = Judicial Custody Conference MSC = Mandatory Settlement Conference SOC = Settlement Officer Conference Status Conference = Case Status Conference TRO = Temporary Restraining Order
A notice regarding Alternate Dispute Resolution Information shall be served with any new Dissolution, Legal Separation, Nullity, Parentage, or Petition for Custody and Support of Minor Children, as well as with any post-Judgment Requests for Orderin cases where a Judgment resolving all matters has been obtained. (See attached local form FM-1021 .)
(1) ATTACHMENTS TO PLEADINGS
a. Evidentiary attachments to pleadings filed with Family Court (excluding Judicial Council form attachments to the pleading at issue) shall not exceed 10 pages in length, except orders to show cause re contempt or applications for wage assignments. However, a party may apply to the court ex parte with written notice of the application to the other parties for permission to attach additional documents. The application must state reasons why the additional attachments are relevant and necessary. Parties should not attach copies of pleadings already contained in the Court file to any new pleading.
b. In lieu of the limits above, courtesy copies of relevant prior filings or other attachments exceeding the 10 page limit may be submitted to the Court bound separately from the current filing to which they relate, with the same copies provided to all attorneys and self-represented parties. Each page of all such attachments shall be numbered sequentially. Parties must deliver courtesy copies to the Court, and shall not send courtesy copies by fax machine. Such photocopies will not be filed or marked as received by the Court. If the submitting party wishes to have such photocopies returned to the party, the submission shall include a stamped, self-addressed envelope of sufficient size to return the photocopies.
(2) USE OF CONFIDENTIAL JUVENILE CASE FILES OR CHILD WELFARE AGENCY RECORDS IN FAMILY COURT MATTERS
All documents obtained from any juvenile case file or from any child welfare agency must be treated as confidential by all parties and attorneys pursuant to WIC 827, 827.10, and Cal. Rules, Rule 5.552. Any party who seeks to file with or present to the Family Court any juvenile case file or child welfare agency document or record must first present a request to file such documents under seal pursuant to Cal. Rules, Rules 2.550 and 2.551. Any pleading filed with the Family Court which attaches, recites or quotes any juvenile case file or child welfare agency record without a prior request and order to file under seal will be stricken from the Family Court file.
(1) Any proposed order submitted to the Court for signature must contain a footer with the title of the order on every page, including the signature page, unless it is a Judicial Council form. In addition, the Court signature and date lines must not be on a page by themselves; the signature page must contain some text of the order.
(2) When a case has been heard by assignment to a temporary judge, the order prepared shall contain the name of that judge and shall be submitted to the temporary judge or the APJ for signature.
(3) Parties presenting a Stipulation and Order to the Court for signature should use the following local form: Stipulation and Order (Attachment FM-1083).
(1) To request service by publication or posting, the Petitioner must submit to the Court the following local forms: Application for Order for Publication or Posting of Summons (see attached local form FM-1022 ) and Order for Publication or Posting of Summons (see attached local form FM-1023 ).
(2) Service by posting may be ordered only if the Petitioner is found to be indigent. A Petitioner requesting service by posting must submit a Request to Waive Court Fees, Judicial Council Form FW-001 , unless one has been approved in the last 4 months. If the Court approves service by posting, Verification of Service by Posting of Summons (see attached local form FM-1024 ) is needed.
(3) If, with Court approval, the Petitioner serves the Respondent with the Petition and Summons by publication or posting and the Respondent has not appeared, the Petitioner may serve the Declarations of Disclosure on the Respondent by mailing them to the Respondent, in care of the Clerk’s Office. The envelope shall be addressed:
Respondent’s Name c/o Clerk’s Office,
Superior Court, Family Division,
191 N. First Street
San Jose, CA 95113
The Petitioner shall note on the Declaration Regarding Service of Declaration of Disclosure (FL-141 ) that the Respondent was served by mail in care of the Clerk’s Office.
When this term is used in any court order, “South Bay Counties” includes only the counties of Alameda, Contra Costa, Marin, Merced, Monterey, San Benito, San Joaquin, San Mateo, San Francisco, Santa Clara, Stanislaus, and Santa Cruz.
The attorney for any moving party shall not set a matter for hearing at a time which conflicts with any other case in any department. However, more than one motion to withdraw as attorney of record may be set by the same attorney on one or more calendars, if to be heard at the same courthouse.
If an attorney is scheduled to appear in more than one matter at a time (for example, as attorney for a moving party in one case and for a responding party in another case), that attorney shall make reasonable effort, well in advance of the hearing date, to obtain a stipulation from the opposing attorney for a hearing on a different day and/or time. Where the unresolved conflict involves an emergency screening, the attorney with the conflict shall notify the courtroom clerk and opposing counsel of the conflict and that the attorney will be delayed for a brief period to allow the emergency screening to commence. Where the unresolved conflict involves a settlement conference or trial, the attorney with the conflict shall schedule a Status Conference on the earliest available date.
(1) LAW AND MOTION MATTERS
In Law and Motion matters, the moving party’s attorney or a self-represented moving party shall contact the opposing attorney or self-represented party in advance of the hearing to meet, to confer, and to learn whether issues can be settled without a contested hearing. The only exception is when both parties are self-represented and there are no-contact restraining orders prohibiting contact.
(2) CLETS HEARINGS
Self-represented parties are not required to meet and confer prior to a hearing seeking a Restraining Order under the Domestic Violence Prevention Act. If only one party is represented, counsel shall ask the self-represented party if he or she consents to speak to the attorney for the other party before any meet and confer.