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California Rules of Court
Rules of Court rule 5.235
Ex parte communication in child custody proceedings
(a) Purpose
Generally, ex parte communication is prohibited in legal proceedings. In child custody proceedings, Family Code section 216 recognizes specific circumstances in which ex parte communication is permitted between court-connected or court-appointed child custody mediators or evaluators and the attorney for any party, the court-appointed counsel for a child, or the court. This rule of court establishes mandatory statewide standards of practice relating to when, and between whom, ex parte communication is permitted in child custody proceedings. This rule applies to all court-ordered child custody mediations or evaluations. As in Family Code section 216, this rule of court does not restrict communications between a court-connected or court-appointed child custody mediator or evaluator and a party in a child custody proceeding who is self-represented or represented by counsel.
(b) Definitions
For purposes of this rule,
(1)
"Communication" includes any verbal statement made in person,
by telephone, by voicemail, or by videoconferencing; any written statement,
illustration, photograph, or other tangible item, contained in a letter,
document, e-mail, or fax; or other equivalent means, either directly or
through third parties.
(2)"Ex parte communication" is a direct or indirect communication
on the substance of a pending case without the knowledge, presence, or
consent of all parties involved in the matter.
(3)A "court-connected mediator or evaluator" is a superior court
employee or a person under contract with a superior court who conducts
child custody evaluations or mediations.
(4)A "court-appointed mediator or evaluator" is a professional in
private practice appointed by the court to conduct a child custody evaluation
or mediation.
(c) Ex parte communication prohibited
In any child custody proceeding under the Family Code, ex parte communication is prohibited between court-connected or court-appointed mediators or evaluators and the attorney for any party, a court-appointed counsel for a child, or the court, except as provided by this rule.
(d) Exception for parties' stipulation
The parties may enter into a stipulation either in open court or in writing to allow ex parte communication between a court-connected or court-appointed mediator or evaluator and:
(1)The attorney for any party; or
(2)The court.
(e) Ex parte communication permitted
In any proceeding under the Family Code, ex parte communication is permitted between a court-connected or court-appointed mediator or evaluator and (1) the attorney for any party, (2) the court-appointed counsel for a child, or (3) the court, only if:
(1)The communication is necessary to schedule an appointment;
(2)The communication is necessary to investigate or disclose an actual or
potential conflict of interest or dual relationship as required under
rule 5.210(h)(10) and (h)(12);
(3)The court-appointed counsel for a child is interviewing a mediator as provided
by Family Code section 3151(c)(5);
(4)The court expressly authorizes ex parte communication between the mediator
or evaluator and court-appointed counsel for a child in circumstances
other than described in (3); or
(5)The mediator or evaluator is informing the court of the belief that a restraining
order is necessary to prevent an imminent risk to the physical safety
of the child or party.
(Subd (e) amended effective January 1, 2007.)
(f) Exception for mandated duties and responsibilities
This rule does not prohibit ex parte communication for the purpose of fulfilling the duties and responsibilities that:
(1)A mediator or evaluator may have as a mandated reporter of suspected child abuse;
(2)A mediator or evaluator may have to warn of threatened violent behavior
against a reasonably identifiable victim or victims;
(3)A mediator or evaluator may have to address a case involving allegations
of domestic violence under Family Code sections 3113, 3181, and 3192 and
rule 5.215; and
(4)The court may have to investigate complaints.
This book, written By Paul A. Eads, helps readers know how to prepare before they initiate a legal endeavor and helps make the legal terms of family law issues easier to understand.
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