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Local Family Rules of Court
FAMILY RULE 2 CUSTODY AND VISITATION
A. PARENT ORIENTATION
B. MEDIATION
C. CONTESTED CASES
D. INITIAL MOTIONS OR ORDERS TO SHOW CAUSE
E. SPECIAL ISSUES
F. MISCELLANEOUS
A. PARENT ORIENTATION
(1) It is the policy of the Court to resolve
disputed custody and visitation issues as soon as possible. Parents will be
ordered to Parent Orientation in the moving papers where custody or
visitation is raised as an issue for the first time in the case, or the
Court may order them to attend the class at any time. Generally, parents are
only required to attend Parent Orientation once, but the Court may, in its
discretion, order parties to take the class more than once.
(Eff. 1/01/08)
(2) When ordered to attend the Parent Orientation,
each parent shall
make the earliest available appointment by calling Family Court Services (FCS)
at (408) 534-5760 within 2 court days of receiving an order to attend Parent
Orientation. Appointments may also be made at the
offices of FCS,
170 Park Center Plaza, San Jose,
California. Attendance at Parent Orientation must occur before mediation unless the
Court orders otherwise.
(Eff. 1/01/08)
(3) Upon request, parents who must travel a substantial distance or suffer
some other hardship may request that they attend Parent Orientation and
their first mediation appointment on the same day.
(Eff. 1/01/08)
(4) Each parent
attending Parent Orientation shall complete and deliver an Application for
Mediation to the office of FCS within 2 court days, unless all custody
and visitation issues have been settled.
(Eff. 1/01/08)
(5) Failure to attend Parent Orientation or to complete the required
documents to proceed to mediation when ordered may result in sanctions.
(Eff. 1/01/08)
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. Each party may request one rescheduled
date if the date assigned by FCS is not acceptable. If a party does
not notify FCS at least 48 hours in advance of any rescheduling or
cancellation of a mediation appointment, that party will be assessed a fee
to FCS.
(Eff. 1/01/08)
(2) The purpose of mediation shall be to reduce
the conflict which
may exist between the parties and to develop a custody and time-sharing
agreement which is in the child(ren)’s best interest.
(Eff. 1/01/08)
(3) 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 or order to show cause before the
Court.
(Eff. 1/01/08)
(4) 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)
(5) Mediation proceedings shall be held in
private and shall be confidential, unless otherwise agreed by the parties
and the mediator. Absent such agreement, the mediator will not be called
upon to testify or to make recommendations to the Court. The mediator shall
report any allegations of child abuse to the proper authorities. Absent an
express written waiver of confidentiality by all parties and the mediator,
the mediator’s notes shall be confidential.
(Eff. 1/01/08)
(6) Parties who do not have a pending family
law motion or order to show cause before the Court may request
mediation from FCS. The parties should contact FCS at 170 Park Center Plaza,
San Jose, California, 95113, and fill out the necessary application. Fees
shall be charged for these mediation services depending upon the party’s
ability to pay.
(Eff. 1/01/08)
(7) At the mediation, if the parties agree to
some or all of the issues concerning custody or visitation, the mediator
shall put the mediated agreement in writing and shall mail copies of the
document to the parties and the attorneys. If no written objections are
received by FCS within 15 calendar days from the date of the mailing of the
mediated agreement, then the document will be submitted to the Court for
review and signature. A copy of the agreement and order, when signed and
filed by the Court, shall be sent with proof of service to the parties and
attorneys by the Family Court.
(Eff. 1/01/08)
C. CONTESTED CASES
(1) RETURN TO MEDIATION AFTER
OBJECTIONS
a. Full Agreements: If the parties reached a full agreement
in mediation and one or both of the parties files and serves timely written
objections, the parties shall return to mediation to attempt to resolve any
outstanding disputes. Each party shall contact FCS to schedule the return to
mediation within 10 calendar days from the mailing of the objections to the
mediated agreement.
(Eff. 1/01/08)
b. Partial Agreement: If the parties reached only a partial
agreement in mediation and one or both of the parties files and serves
timely written objections, the parties may return to mediation by agreement.
If the parties agree to return to mediation, each party shall contact FCS to
schedule the return to mediation within 10 calendar days from the mailing of
the objections to the mediated agreement. The parties, however, will still
proceed to a Judicial Custody Conference, as described in section (2) below.
(Eff. 1/01/08)
(2) JUDICIAL CUSTODY CONFERENCE (JCC)
a. Referral to JCC: If the parties do
not reach a full agreement at mediation, the mediator shall prepare and
serve on the attorneys and any self-represented parties a Referral to JCC,
unless the mediator believes a further mediation would be helpful. The
Referral to JCC shall describe generally the remaining disputed issues.
(Eff. 1/01/08)
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 Santa Clara County Superior Court, Family Court, 170 Park
Center Plaza, San Jose, California. The party scheduling the JCC shall
coordinate the date with the other party. A copy of the JCC referral 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 subsequent date available to the Court. If no JCC is set within
the required time, a party or counsel may schedule a CMC to request a JCC.
(Eff. 1/01/08)
c. Requirement to Confer: The attorneys and parties
shall confer no later than 10 calendar days before the scheduled JCC in
order to make a good faith effort to resolve any issues that remain in
dispute, unless an existing restraining order prohibits contact between the
parties and the parties are self-represented. If the issues are resolved,
the parties shall immediately notify FCS and the Court and prepare a
stipulation to submit to the APJ for signature.
(Eff. 1/01/08)
d. Judicial Custody Conference Statement:
Each party shall serve and file a completed Judicial Custody Conference
Statement at least 10 calendar days before the scheduled JCC. (See attached form FM-1016.) Each party shall bring 2 copies of this form to the
JCC.
(Eff. 1/01/08)
e Attendance at the JCC: All parties
and counsel are required to attend the JCC, unless attendance has been
excused in advance by the APJ. Children shall not be present for the JCC,
unless the Court so orders.
(Eff. 1/01/08)
f. Judicial Custody Conference: At the JCC, the judge
may assist in resolving any remaining custody or visitation disputes. The
judge may also order a custody assessment or evaluation to be performed by
the staff of FCS or by a private assessor or evaluator. If the Court
orders an FCS assessment, the first appointment shall be scheduled before
the parties and counsel leave the JCC. If the Court orders an FCS evaluation
at the Central County courthouse, the parties and attorneys shall
immediately present the order to FCS and then shall receive an appointment
letter from FCS. For orders issued at other courthouses, FCS shall send an
appointment letter. If an assessment or evaluation is
not warranted and disputed issues remain, the matter will be scheduled for
hearing.
(Eff. 7/01/08)
g. By stipulation or after a hearing before
or after the assessment or evaluation process is completed, the judge may
order that the parties and/or child(ren) participate in counseling,
parenting education classes, or any other appropriate services; that
attorney(s) be appointed to represent the child(ren); or that the parties
and/or child(ren) participate in psychological testing.
(Eff. 1/01/08)
h. Failure to Appear at a JCC: If a
party fails to appear at a JCC, the Court may make custody and visitation
orders. In addition, on notice to the parties, the Court may order sanctions
for the failure to appear.
(Eff. 1/01/08)
(3) CUSTODY ASSESSMENTS AND EVALUATIONS
a. A custody/visitation assessment involves
the same investigation and produces the same recommended orders as a custody
evaluation, and both comply with the standards of California Rule of Court
5.220. A custody evaluation, unlike an assessment, also includes a
full written report explaining the recommended orders. The Court orders an
evaluation only when it determines that a full report is needed. When an
assessment is ordered, the Court shall set a Custody Settlement Conference (CSC)
on a date between 90 and 100 days from the initial assessment appointment.
When an evaluation is ordered, the appointment letter that FCS sends shall
set the CSC on a date between 90 and 100 days from the initial evaluation
appointment. At the initial assessment or evaluation appointment, the
assessor/evaluator may coordinate rescheduling the CSC, within the same 90
or 100 day period, if the original CSC date conflicts with the
assessor/evaluator's schedule.
(Eff. 7/01/08)
b. As an alternative to an FCS assessment or evaluation, the parties, by stipulation and
with the Court's approval, may nominate a private assessor/evaluator to perform an assessment
or evaluation pursuant to current statutory law, at the parties' expense. The Court may
also appoint private assessors or evaluators in its discretion over
objection at a noticed JCC, CMC, or other hearing. The parties shall share
the costs of the private assessment or evaluation equally, unless the Court
orders a different allocation. The requirements and timelines in this Rule
shall apply to private assessments or evaluations.
(Eff. 1/01/08)
c. If there has been a previous FCS assessment or
evaluation, FCS will generally schedule the assessment with that previous
assessor/evaluator. Unless the parties
and the mediator waive the confidentiality of the mediation proceedings, the
case will not be referred to the FCS mediator for assessment or
evaluation.
(Eff. 1/01/08)
d. The director of FCS (or the director's designee) shall
have the exclusive responsibility for case assignment to assessors and
evaluators within FCS.
(Eff. 1/01/07)
e. Child(ren) must be present for the
initial assessment or evaluation appointment, when (and only when) either
parent resides more than 100 miles from San Jose, or the Court or the
assessor/evaluator directs
that the child(ren) be available. When the child(ren) are required to be
present under this Rule, the custodial parent shall bring an adult who can
care for the child(ren). All parties shall cooperate with an
assessor/evaluator in arranging times for the assessor/evaluator to see the child(ren)
after the initial assessment or evaluation appointment, if requested by the assessor/evaluator.
(Eff. 1/01/08)
f. The assessor/evaluator will interview the parties,
separately or jointly as appropriate, and their attorneys, and may schedule
additional interviews with the parents, child(ren) or others to complete the
assessment or evaluation. If one attorney fails to appear at the initial
appointment, as required, the assessor/evaluator has the discretion to
proceed with the parties only and to reschedule the appointment with both
attorneys. Sanctions may be imposed, upon notice, for the attorney's failure
to appear.
(Eff. 1/01/08)
g. Confidentiality of Evaluation Reports: Evaluation
reports are confidential and shall be sent to attorneys and self-represented
parties only. The confidential 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, court ordered therapists, and court
ordered assessors/evaluators. The evaluation report shall not be placed in
the court file. Evaluation reports, including psychological evaluations,
shall not be attached as exhibits to any papers filed with the Court.
(Eff. 1/01/08)
h. Fees: Fees will be charged by FCS
for assessments and evaluations, unless a waiver is granted. When the Court
orders a custody/visitation assessment or evaluation through FCS, the
parties shall submit deposits or fee waiver requests to FCS within 5 court
days of receipt of the Court’s order.
(Eff. 1/01/08)
(4) RECOMMENDED ORDERS AND OBJECTIONS
a. No later than 60 calendar days following the date
of the first appointment with the assessor or evaluator, the assessor or
evaluator shall
complete written recommendations, and a report in the case of an evaluation.
Upon completion, FCS or the private assessor/evaluator shall serve the
recommendations by mail or personally on all parties and counsel. The time
for completion and service of the assessment or evaluation may be extended
by the Court on written application upon a showing of good cause. Any
request for extension shall be sent to all counsel or self-represented parties. The Court
shall wait 10 calendar days before deciding any extension request to allow parties the opportunity to respond.
(Eff. 1/01/08)
b. Any party shall have 15 calendar days
after the date of mailing of the assessment or evaluation recommendations to
file and serve written objections to the recommended order.
(Eff. 7/01/08)
If objections are filed, the parties shall contact the
assessor/evaluator to schedule a meeting to discuss the objections. This
meeting shall take place before 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 order and may order sanctions.
(Eff. 7/01/08)
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 reason(s) for the objections; and
iii. the proposed modified language.
(Eff. 1/01/08)
Objections shall be filed with the Court, along with a proof
of service on all counsel or self-represented parties. FCS or the
private assessor/evaluator must be served with an endorsed filed copy of the
objections, which must also be shown on a proof of service.
(Eff. 7/01/08)
If no objections are filed within 15 calendar days from the date of the mailing of the assessment or
evaluation recommendations, the recommended order shall be submitted to the
Court for review and signature.
(Eff. 7/01/08)
d. Continuance Requests: Any proposed
stipulations to reschedule a CSC shall be in writing and shall include the
signature of the assessor/evaluator.
(Eff. 1/01/08)
(5) CUSTODY SETTLEMENT CONFERENCE (CSC)
a. All attorneys and parties and the
assessor/evaluator shall attend
the CSC at the scheduled time and place, to address the settlement of all
contested custody and visitation issues or the issues to be tried.
(Eff. 1/01/08)
b. Statement of Issues: No settlement
conference statement shall be required for a CSC; however, each party shall
file and serve a Statement of Issues at least 10 calendar days before the
CSC. The Statement of Issues shall clearly set forth any remaining custody
or visitation issues and any proposed alternative language. Previously filed
objections may be attached and incorporated by reference. In addition, the
Statement of Issues shall state the time estimated for trial and provide a
list of witnesses anticipated to be called at trial. Each party shall bring
2 copies of the Statement of Issues to the CSC.
(Eff. 1/01/08)
c. If agreement is not reached at the CSC,
the Court may set the case for trial or hearing. Custody and visitation
issues are only set for trial or hearing by the Court and are not set for
trial by filing a Request for Trial (attached
form FM-1012).
(Eff. 1/01/08)
d. Failure to Appear: If a party fails
to appear at the CSC, a hearing may be held that day and custody/visitation
orders may be made. In addition, on notice to the parties, the Court may order
sanctions for the failure to appear.
(Eff. 1/01/08)
(6) EMERGENCY SCREENINGS
a. It is the policy of the Court that the child(ren)’s
previously established living situation should not be radically altered
during the pendency of custody and visitation disputes. Only under
extraordinary circumstances will the Court, for example, deny one parent’s
access to the child(ren) or change any child(ren)’s principal place of
residence.
(Eff. 1/01/08)
b. 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 assessment). Instructions
for emergency screening procedures shall be attached to the moving papers
and shall be served on the opposing party/attorney. The purpose of the
screening shall be to provide the Court with recommendations regarding the
temporary custody, visitation, and related conditions for the minor
children. If the parties agree to a private emergency screening, the
screening will be conducted without the involvement of FCS or a hearing with
the Court.
(Eff. 1/01/08)
c. 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)
d. 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)
e. Fees shall be charged for any screening performed by FCS,
unless a fee waiver is granted.
(Eff. 1/01/08)
D.
INITIAL MOTIONS OR ORDERS TO SHOW CAUSE
In all initial motions or orders to show
cause in which custody or visitation is an issue, the moving party shall
include the following order:
"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 appointments may
result in the imposition of sanctions."
(Eff. 7/01/08)
In addition, a notice form describing the
Parent Orientation and
mediation shall be served with any initial motion or order to show cause
dealing with issues of custody or visitation. The form of this notice shall be available through the
Calendar Office of the Clerk's Office.
(Eff. 1/01/08)
E. SPECIAL ISSUES
(1) HEARINGS
a. Notice to FCS: To insure the availability of the assigned
assessor/evaluator, CSCs, trials, and hearings must be coordinated with that
person in advance by the party who has requested the appearance of the
assessor/evaluator at a hearing or by the party scheduling the CSC.
(Eff. 1/01/08)
b. Appearance of FCS Staff at Trial/Long Cause Hearing:
Any party who seeks to examine or cross-examine any FCS staff or who seeks
to introduce into evidence any recommendation or report of FCS staff at any
trial or hearing must coordinate the date with FCS before setting it and
must serve an appropriate subpoena.
(Eff. 1/01/08)
c. Expert witness fees: Any party may be assessed expert witness fees for the appearance of an FCS staff member at a
trial or hearing. The fees shall be borne equally by the
parties unless otherwise ordered by the Court.
(Eff. 1/01/08)
d. Children in the Courthouse: While child(ren)
who are the subject of litigation may appear at the courthouse, it is the
policy of the Court not to have any child(ren) in the courtroom without the Court’s prior knowledge
and consent. At all times, child(ren) present in the courthouse shall be in the care of a responsible adult
person who
is not a party to the case.
(Eff. 1/01/08)
(2) DOMESTIC VIOLENCE CASES
In all cases in which domestic violence is
alleged, FCS will spend some time with each parent separately in order to assess this
issue in accordance with the Family Court Services’ Domestic Violence
Protocol
early in the interviewing process. The Domestic Violence Protocol is
available from Family Court Services.
(Eff. 1/01/08)
(3) DISCOVERY
a. Protective Order: When making any order for the
production of FCS records or psychological evaluations, the Court will make
appropriate Protective Orders. The
Protective Order form can be located on
the Court’s website.
(Eff. 1/01/08)
b. Timing of Discovery: Absent good cause,
depositions of FCS personnel shall not be taken and FCS records shall not be
subpoenaed until the completion of the recommendations and the filing of
objections. Any depositions of FCS personnel must be coordinated with FCS.
(Eff. 1/01/08)
(4) DOCUMENTS PROVIDED TO ASSESSOR, EVALUATOR, OR SCREENER
Any documents provided to an assessor/evaluator or screener
shall be accompanied by a proof of service on all other parties or their
attorneys, except for documents handed to an assessor/evaluator or screener
in the presence of the other party or counsel (in which case copies shall be
provided at the same time to the other party or counsel). FCS may require a
party to index and prioritize the review of voluminous submitted documents.
(Eff. 7/01/08)
F. MISCELLANEOUS
(1) Complaints:
A complaint may be submitted by letter to FCS with proof of service of a
copy to all other parties.
(Eff. 1/01/08)
(2) Challenges: Peremptory challenges to FCS assessors, FCS evaluators, private
assessor/evaluators appointed by the court, and mental health professionals appointed
by the Court to do psychological testing shall not be permitted. Challenges
for cause of such individuals shall first be directed to the director of
Family Court Services. If that does not resolve the matter, such a challenge
shall be directed in writing to the APJ. Copies of any challenges for cause
shall be provided to all counsel and self-represented parties.
(Eff. 1/01/08)
(3) Sanctions: Sanctions and/or fees may be imposed with
appropriate notice for failure to appear for
appointments and appearances in Family Court and FCS and with private
assessors and evaluators.
(Eff. 1/01/08)
(4) Domestic Violence Training: Court appointed assessors and evaluators
shall comply with the domestic
violence training requirements of CRC Rule 5.230.
Private custody assessors/evaluators shall provide Family Court Services and
the Supervising Judge of the Family Court with a written verification of
completion of the basic domestic violence training. In addition, custody and
visitation assessors/evaluators shall provide written verification of
completion of the 4 hours update on an annual basis to Family Court Services
and the Supervising Judge of the Family Court. Custody assessments and
evaluations shall be accompanied by written declarations under oath from the
assessor/evaluator that he or she has completed the required domestic
violence training, including applicable updates.
(Eff. 1/01/08)
(5) Fee Waiver Requests: Any request
for a waiver of FCS fees must be made on the
Judicial Council Fee Waiver
Request and Order forms.
(Eff. 1/01/08)
(6) Time Limits: The time limits set forth in this
Local Rule include the time for mailing and shall not be extended by the
mailing of any required documents.
(Eff. 1/01/08)
(7) Extensions of Time Deadlines: The time deadlines
in this Rule shall only be extended for good cause and by court order.
(Eff. 1/01/08)
Family Rules: Summary - 1 -
2 - 3 -
4 - 5 -
6 - 7 -
8 - Appendix: A - B - C
List of attached Family local forms
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