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local family rule 2

FAMILY RULE 2: CUSTODY AND VISITATION

A. PARENT ORIENTATION

(1) In all initial motions or requests for order in which custody or visitation is an issue, the moving party shall include the order below and shall serve a notice form describing Parent Orientation and Mediation that is available through the Calendar Office of the Clerk’s Office:

“Each party is ordered to contact Family Court Services at (408) 534-5600  immediately to schedule Parent Orientation. Failure to comply with this order or keep any FCS appointments may result in the imposition of sanctions.”

The Court may also order parents to attend Parent Orientation at any time. Generally, parents are only required to attend Parent Orientation once, but the Court may order parties to take the class more than once.

(Eff. 1/01/13)

(2) Attendance at Parent Orientation must occur before mediation, unless the Court orders otherwise. Upon request, parents who must travel a substantial distance or suffer some other hardship may request to attend Parent Orientation and the first mediation appointment on the same day.

(Eff. 1/01/11)

(3) Each parent attending Parent Orientation shall complete and deliver an Application for Mediation to the FCS office within two court days after the Parent Orientation, unless all custody and visitation issues have been settled.

(Eff. 1/01/11)

B MEDIATION

(1) Upon receipt of the parties' Applications for Mediation, FCS shall schedule the first available mediation appointment and both parties shall attend the mediation. If the date assigned by FCS is not acceptable, either party may request one rescheduled date for mediation. If a party does not notify FCS of a request to reschedule at least 48 hours before the mediation appointment, that party will be assessed a fee to FCS.

(Eff. 1/01/11)

(2) The mediation appointment shall be considered a court date at which the parties shall appear. Failure to attend mediation or late cancellation of mediation appointments may result in sanctions. There are no fees for FCS mediation, provided that there is a pending custody or visitation motion before the Court.

(Eff. 1/01/13)

(3) The parties may stipulate to private mediation for custody and visitation disputes, at their own expense. The APJ will determine whether the parties must also participate in mediation with FCS.

(Eff. 1/01/07)

(4) Mediation proceedings shall be private and confidential, and the mediator’s notes shall be confidential, unless the parties and the mediator agree otherwise. Absent agreement, the mediator will not be called to testify or to make recommendations to the Court. However, the mediator shall report any allegations of child abuse to the proper authorities.

(Eff. 1/01/11)

(5) At the mediation, if the parties agree to some or all of the custody and visitation issues, the mediator shall prepare the written agreement and shall mail copies of the document to the parties and attorneys. The parties may object to the mediated agreement by submitting written objections to FCS, along with a proof of service on all attorneys or self-represented parties.

a. Objections: Objections shall be in writing and shall include:

i. the specific paragraphs and language to which the party objects;
ii. the reasons for the objections; and
iii. the proposed modified language.

(Eff. 1/01/11)

If FCS receives no written objections with proof of service within 15 calendar days from the date of the mailing of the mediated agreement, the agreement will be submitted to the Court for review and signature. Family Court will send a copy of the agreement and order, when signed and filed by the Court, with proof of service to the parties and attorneys.

(Eff. 1/01/11)

C. CONTESTED CASES

(1) RETURN TO MEDIATION AFTER OBJECTIONS

a. Full Agreements: If the parties reached a full agreement in mediation but a party served timely written objections, the parties shall return to mediation to attempt to resolve any outstanding disputes. Each party shall contact FCS within 10 calendar days from the mailing of the objections to schedule the return mediation.

(Eff. 1/01/11)

b. Partial Agreement: If the parties reached only a partial agreement in mediation and a party served timely written objections, the mediator may choose to schedule a return mediation, or the parties may return to mediation by agreement. If the parties agree, each party shall contact FCS within 10 calendar days from the mailing of the objections to schedule the return mediation. If no return mediation is scheduled, the parties shall proceed to a Judicial Custody Conference.

(Eff. 1/01/11)

(2) JUDICIAL CUSTODY CONFERENCE (JCC)

a. Referral to JCC: If the parties do not reach a full agreement at mediation and no return mediation is scheduled by FCS, the mediator shall serve on the attorneys and any self-represented parties a Referral to JCC. The Referral to JCC shall describe generally the remaining disputed issues.

(Eff. 1/01/11)

b. Scheduling the JCC: Parties shall have 15 calendar days from the date of the Referral to JCC to schedule the JCC by contacting the Calendar Office of the Clerk’s Office by telephone at (408) 534-5710  or in person at 170 Park Avenue, San Jose, California. The party scheduling the JCC shall coordinate the date with the other party. A copy of the Referral to JCC must be provided to the Calendar Clerk in order to schedule the JCC. The JCC shall be scheduled within 30 calendar days of the date of the Referral to JCC or on the first date available to the Court. If no JCC is set as required, a party may request a Status Conference or CRC to request a JCC.

(Eff. 1/01/13)

c. Scheduling the JCC after Private Mediation: Parties who attend private mediation may schedule a JCC by sending a letter to the Clerk's Office, with proof of service on all parties, requesting a JCC and verifying (1) that the parties have completed mediation that has not resulted in an agreement, and (2) that each party attended Parent Orientation. Within 30 calendar days after the letter is sent to the Clerk's Office, one of the parties or attorneys shall call the Calendar Office of the Clerk's Office to schedule the JCC, as described in section (2)b above.

(Eff. 1/01/11)

d. Requirement to Confer: Except where contact between self-represented parties is prohibited by a Restraining Order, all parties and attorneys shall confer in good faith no later than 10 calendar days before the scheduled JCC to resolve any remaining issues. If the issues are resolved, the parties shall immediately notify FCS and the Court and prepare a stipulation for APJ's signature.

(Eff. 1/01/11)

e. JCC Statement: Each party shall serve and file a Judicial Custody Conference Statement at least 10 calendar days before the scheduled JCC. (See attached form FM-1016 .) Each party shall bring two copies of this form to the JCC.

(Eff. 1/01/11)

f. Attendance at the JCC: All parties and counsel are required to attend the JCC, unless attendance has been excused in advance by the APJ. If a party fails to appear at the JCC, a hearing may be held on the day of the JCC or on another date, and custody or visitation orders may be made. If the judge is not able to assist in resolving any remaining custody or visitation disputes at the JCC, the judge may order a custody evaluation to be performed by the staff of FCS or by a private evaluator; may schedule a hearing or trial to decide any disputed issues; may order the parties to return to mediation; or may make other orders as necessary for the best interest of the child. If the Court orders an FCS evaluation, the first appointment shall be scheduled before the parties leave the JCC.

(Eff. 1/01/11)

(3) CUSTODY EVALUATIONS

(Eff. 7/01/09)

a. When an evaluation is ordered at FCS, the Court shall set a Custody Settlement Conference (CSC) on a date between 90 and 100 calendar days from the initial appointment. At the initial evaluation appointment, the FCS evaluator may coordinate rescheduling the CSC, within the same 90 to 100 calendar day period, if the original CSC date conflicts with the evaluator's schedule.

(Eff. 1/01/11)

b. By stipulation and with the Court's approval, the parties may nominate a private evaluator to perform an evaluation at the parties' expense. The Court may also appoint a private evaluator over objection at a noticed JCC, Status Conference, CRC, or other hearing. The parties shall share the costs of the private evaluation equally, unless the Court orders a different allocation. The Court shall set a CSC date between 140 and 150 calendar days from the date of the order to a private evaluation, or earlier if the private evaluator and the APJ agree. The requirements and other timelines in this Rule shall apply to private evaluations.

(Eff. 1/01/11)

c. By stipulation and with the Court’s approval, the parties may nominate a private evaluator to perform a Brief Focused Assessment (BFA) at the parties’ expense. The Court may also appoint a private evaluator to conduct a BFA over objection at a noticed JCC, Status Conference, CRC, or other hearing. A Brief Focused Assessment is a limited custody evaluation. Form FM-1127  shall be attached to Judicial Council form FL-327 , to set forth the scope and procedures for the BFA. The parties shall share the costs for the BFA equally, unless the Court orders a different allocation. The Court shall set a CSC date between 90 and 100 days from the date of the BFA Order or earlier if the evaluator and the APJ agree. The requirements and other timelines in this Rule shall apply to BFA evaluations.

(Eff. 7/01/14)

d. Parties shall notify the evaluator, the Calendar Office and the clerk for the APJ as soon as the case settles before the CSC.

(Eff. 1/01/11)

e. Children must be present for the initial evaluation appointment only when either parent resides more than 100 miles from the courthouse to which the case is assigned, or the Court or the evaluator directs that the children be available. When the children are required to be present, the custodial parent shall bring an adult who can care for the children.

(Eff. 1/01/11)

f. If one attorney fails to appear at the initial appointment, as required, the evaluator has the discretion to proceed with the parties only and to reschedule the appointment with both attorneys.

(Eff. 1/01/11)

g. Evaluation reports are confidential and shall be sent to the Court, attorneys and self-represented parties only. The report shall not be duplicated, disseminated, or in any other way provided or shown to any individual not a party to the proceedings, except consulting experts and court-ordered therapists and evaluators. Evaluation reports, including psychological evaluations, shall not be attached as exhibits to any papers filed with the Court, and shall not be quoted or summarized in any publicly filed document.

(Eff. 1/01/11)

h. FCS will charge for evaluations, unless a fee waiver is granted for a party. The parties shall submit deposits or fee waiver requests to FCS within five court days of receipt of the Court’s order to an evaluation.

(Eff. 1/01/11)

(4) RECOMMENDED ORDERS AND OBJECTIONS

a. No later than 60 calendar days after the date of the first evaluation appointment the evaluator shall serve on all parties and counsel written recommendations and a report. The time for completing the evaluation may be extended by the Court on the evaluator’s written application upon a showing of good cause. Any extension request shall be served on all self-represented parties and attorneys. The Court shall wait 10 calendar days before deciding any extension request, to allow parties the opportunity to respond. Any response shall be submitted to the Court in writing with a proof of service on the opposing party or counsel and FCS.

(Eff. 1/01/11)

b. Any party shall have 15 calendar days after the date of mailing of the evaluation recommendations to object to the recommendations by doing all of the following:

i. File specific written objections with the Court.
ii. File a proof of service showing service of the objections on all attorneys or self-represented parties.
iii. Personally serve FCS or the private evaluator with an endorsed, filed copy of the objections and a copy of the proof of service showing service of the objections on the attorneys and parties.

c. Objections: Objections shall be in writing and shall include the following:

i. the specific paragraphs and language to which the party objects;

(Eff. 1/01/08)

ii. the reasons for the objections; and
iii. the proposed modified language.

(Eff. 1/01/08)

d. Meeting After Objections: When objections are filed, the parties shall contact the evaluator within five calendar days of the filing of the objections to schedule a Meeting After Objections to discuss the objections before the CSC. The Meeting After Objections shall occur prior to the date of the CSC. If any party fails to cooperate in setting, or fails to attend, this Meeting after Objections, the Court at the CSC may sign the recommended orders and may order sanctions. If no endorsed, filed objections are received by FCS or the private evaluator within 15 calendar days from the date of mailing of the evaluation recommendations, the recommended order shall be submitted to the Court for review and signature.

(Eff. 7/01/14)

(5) CUSTODY SETTLEMENT CONFERENCE (CSC)

a. All attorneys and parties and the evaluator shall attend the scheduled CSC to attempt to settle all contested custody and visitation issues. Any proposed stipulation to reschedule a CSC shall be in writing and shall include the evaluator’s signature.

(Eff. 1/01/11)

b. Each party shall file and serve a CSC Statement at least 10 calendar days before the CSC, clearly stating any remaining custody or visitation issues and any proposed alternative language. Previously-filed objections may be attached and incorporated by reference. The Statement of Issues shall also include the time estimate for trial and a list of witnesses. Each party shall bring two copies of the CSC Statement to the CSC.

(Eff. 1/01/11)

c. If agreement is not reached at the CSC, the Court may set the case for trial or hearing.

(Eff. 1/01/11)

d. If a party fails to appear at the CSC, a hearing may be held on the day of the CSC or on another day set by the Court and custody or visitation orders may be made.

(Eff. 1/01/11)

(6) EMERGENCY SCREENINGS

a. In any case in which an emergency exists, the Court may order a staff member of FCS, other than the mediator, to conduct an “emergency screening” (a preliminary and limited investigation), to make recommendations regarding the temporary custody, visitation, and related conditions for the minor children. In most cases, the Court will not order any emergency screening based solely on an ex parte application, but may order protective orders until the hearing date on an adequate showing that serious harm to a child may result if no order is issued. FCS or the Court will provide instructions for emergency screening to all parties and attorneys when a screening is ordered. Attorneys and parties must be available as required by FCS, or the Court may reschedule the screening. After an order to an emergency screening, the parties may agree to a private emergency screening at the parties’ expense. A private screening shall be conducted in compliance with these Local Rules, but without the involvement of FCS. The Court will not provide reports of criminal history or CPS records to any private screener.

(Eff. 7/01/12)

b. If the parties agree to and sign the screening recommendations, they shall be submitted to the Court for review and signature.

(Eff. 1/01/08)

c. If a party objects to the screening recommendations, a brief hearing, generally less than thirty minutes, will be held on the day of the screening, or as soon as possible.

(Eff. 1/01/08)

d. Fees shall be charged for any screening performed by FCS, unless a fee waiver is granted.

(Eff. 1/01/08)

e. In most cases, an FCS mediator who conducted an emergency screening (“FCS screener”) is available for testimony at a hearing immediately following the completion of the screening. In the event that a party intends to request the testimony of an FCS screener at any hearing, trial or deposition set seven days or more following the final conclusion of the screening (i.e., the investigation is complete, a final screening order has been signed, and no further screening date is scheduled), the requesting party shall do all of the following: 1) Coordinate the date of the testimony with FCS and all parties; 2) Serve an appropriate subpoena on the FCS screener; and, 3) Schedule a CRC with the Court by contacting the courtroom clerk at the earliest opportunity, and give notice of that CRC to FCS, all counsel and unrepresented parties. The Court shall give calendar priority to such a request for CRC.

(Eff. 1/01/13)

Absent good cause shown for an order shortening time, the subpoena shall be served and the CRC scheduled for a date no later than 30 days prior to any hearing, including trial, or 45 days prior to the start of a deposition. At the CRC, the requesting party shall describe the issues currently in dispute in the case and make an offer of proof of the relevance of and the need for the testimony to those issues.

(Eff. 1/01/13)

The requesting party shall also provide a time estimate for the testimony of the FCS screener at the hearing, trial or deposition. At that CRC, based on the offer of proof and any other information presented at the CRC, the Court may allow the deposition or hearing testimony to proceed, may limit the scope or duration of any testimony, or may conclude that the FCS screener will not be required to testify. The requesting party shall immediately give notice to FCS of the outcome of the CRC, and serve any order signed by the Court on FCS and all parties.

(Eff. 1/01/13)

Absent good cause, the FCS screener will not be required to appear in response to the subpoena unless the mandates of this provision have been followed.

(Eff. 7/01/12)

(7) MODIFICATION OF JUVENILE COURT EXIT ORDERS

Requests to modify the juvenile custody order filed within one year of the date the custodial order was entered shall be returned to the issuing juvenile department for hearing. The juvenile judge shall determine whether there is a significant change in circumstances to warrant modification of that order as set forth in Welfare and Institutions Code § 302(d), and make any orders necessary to promote the child’s best interests. The juvenile judge shall sit as a family judge for purposes of hearing the motions regarding modification of custody and/or visitation. Thereafter, any future litigation relating to the custody, visitation and control of the child shall be heard in the Family Court.

(Eff. 7/01/12)

D. SPECIAL ISSUES
(Eff. 1/01/11)

(1) FCS PERSONNEL

(Eff. 1/01/11)

a. Any party who seeks to examine any FCS staff at any deposition, trial, or hearing must coordinate the date with FCS and must serve an appropriate subpoena. Absent a court order obtained through the procedure described in Rule 2.C. (6), at any motion hearing, or at a JCC or CSC, no party shall serve a subpoena for testimony of a mediator who performed an evaluation unless the subpoena is served within three months after the final Custody Settlement Conference.

(Eff. 7/01/12)

b. Any party who subpoenas any FCS staff to appear in Court must confirm that the appearance is still required with that FCS staff person by telephone at least one court day in advance. The subpoenaing party must inform the FCS staff person immediately of any continuance or delay of the hearing, or settlement.

(Eff. 1/01/11)

c. Any party may be assessed expert witness fees for the appearance of an FCS staff member at a trial or hearing. The parties shall pay the fees equally unless the Court orders otherwise.

(Eff. 1/01/11)

d. Absent a Court order based on good cause, no deposition subpoena of FCS personnel and no subpoena for FCS records shall be served until recommendations pursuant to an evaluation are complete and an objection is filed.

(Eff. 7/01/12)

e. No peremptory challenges are permitted to FCS evaluators, private evaluators appointed by the Court pursuant to Evidence Code § 730, and mental health professionals appointed by the Court to do psychological testing. A complaint about an FCS evaluator, mediator, or emergency screener may be submitted to FCS using the Family Court Services Client Complaint Form, with proof of service of a copy to all other counsel and self-represented parties. (See attached Form FM-1078 .) Attachments to the FM-1078 shall not exceed three pages, double spaced. FCS may ask for more information in its sole discretion. FCS will accept and respond to the complaint in writing to all parties within 30 days. A complaint about a private evaluator, private mediator or private emergency screener may be submitted by letter to the Supervising Family Court Judge with proof of service of a copy to all other counsel and self-represented parties. The Supervising Family Court Judge will accept and respond to the complaint in writing within 30 days.

(Eff. 1/01/13)

(2) CHILDREN IN THE COURTHOUSE

While children who are the subject of litigation may appear at the courthouse, it is the policy of the Court not to have any children in the courtroom without the Court’s prior knowledge. At all times, children present in the courthouse shall be in the care of a responsible adult person who is not a party to the case. Further, a child shall not be brought to court to testify without prior order of the court following a discussion of the factors described in Cal. Rules 5.250 regarding the child’s participation in family court proceedings.

(Eff. 1/01/13)

 

(3) TESTIMONY OF CHILDREN

No party shall notice or take the deposition of any minor child who is the subject of litigation without first obtaining a court order to allow that deposition after a noticed hearing and based on a showing of a compelling reason to take the deposition.

(Eff. 7/01/12)

(4) PRODUCTION OF FCS RECORDS/PROTECTIVE ORDER

When making any order for the production of FCS records or psychological evaluations, the Court will make appropriate Protective Orders. The mandatory Protective Order form is located on the Court’s website. (See attached local form FM-1061 .) Subpoenas for the production of FCS records and the signed Protective Order must be served on FCS at least six weeks in advance of the date the records are required.

(Eff. 7/01/12)

(5) DOCUMENTS PROVIDED TO EVALUATOR OR SCREENER

(Eff. 7/01/09)

Any documents provided to an evaluator or screener shall be accompanied by either a Judicial Council Proof of Service (FL-330  or FL-335 ) or the FCS Declaration of Mailing or Personal Service form (see attached local form FM-1036 ), except for documents handed to an evaluator or screener in the presence of the other party or attorney (in which case copies shall be provided at the same time to the other party or attorney). The number of submitted pages shall be stated on the form. FCS may require a party to index and prioritize submissions. A party who submits more than 15 pages to an FCS evaluator or screener (“FCS”) shall index, number each page sequentially, and assign a priority to all documents submitted. FCS may seek guidance from the Court at the commencement of a screening, or in the case of an evaluation, may ask the Court to set an immediate review hearing if FCS contends that a document submission of more than 15 pages (excluding items specifically requested) is not warranted or contains documents not relevant to the issues to be considered. The Court shall set this hearing on shortened time so that the evaluation will not be delayed. At that hearing, the Court may limit the scope and/or number of documents to be considered by FCS.

(Eff. 7/01/12)

(6) DOMESTIC VIOLENCE TRAINING

Private custody evaluators shall provide FCS and the Supervising Judge of the Family Court with a written verification of completion of the basic domestic violence training, and the four hour update annually. Custody evaluations shall be accompanied by the evaluator’s written declaration under oath that he or she has completed the required domestic violence training, including applicable updates.

(Eff. 1/01/11)

(7) TIME LIMITS

The time limits in this Rule include the time for mailing and shall not be extended by the mailing of any required documents.

(Eff. 1/01/11)

(8) NON-PROFESSIONAL SUPERVISED VISITATION

Non-Professional visitation supervisors may complete, file, and serve Attachment FM-1129 , Non-Professional Supervised Visitation Provider Declaration of Qualifications within 30 days of appointment as a visitation supervisor in a case. In the alternative, the Court may place a proposed visitation supervisor under oath, then advise and question the supervisor regarding qualifications and obligations per Family Code § 3200.5  and California State Rules of Court, Rule 5.20 (c)(1) and obtain acknowledgment and consent to abide by the rules and to act as supervisor. The visitation supervisor shall be provided a copy of A Guide for the Non-Professional Provider of Supervised Visitation.

(Eff. 7/01/14)


 

Family Rules of Court: Summary - 1 - 2 - 3 - 4 - 5 - 6 - 7 - 8 - 9 - Appendix: A - B - C
List of attached Family local forms

 

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