CALIFORNIA STATUTES AND RULES OF COURT RELEVANT TO ONGOING EDUCATION FOR JUDGES
Statutes Relevant to Judicial Education:
CALIFORNIA GOVERNMENT CODE
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California Rules of Court
Rule 5.235. Ex parte communication in child custody proceedings
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.
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
(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.
(Subd (f) amended effective January 1, 2007.)
Rule 5.235 amended effective January 1, 2007; adopted effective July 1, 2006.
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Rule 5.250. Children's participation and testimony in family court proceedings
(a) Children's participation
This rule is intended to implement Family Code section 3042. Children's participation in family law matters must be considered on a case-by-case basis. No statutory mandate, rule, or practice requires children to participate in court or prohibits them from doing so. When a child wishes to participate, the court should find a balance between protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child's input while ensuring all parties' due process rights to challenge evidence relied upon by the court in making custody decisions.
(b) Determining if the child wishes to address the court
(1)The following persons must inform the court if they have information indicating that a child in a custody or visitation (parenting time) matter wishes to address the court:
(A)A minor's counsel;
(C)An investigator; and
(D)A child custody recommending counselor who provides recommendations to the judge under Family Code section 3183.
(2)The following persons may inform the court if they have information indicating that a child wishes to address the court:
(A)A party; and
(B)A party's attorney.
(3)In the absence of information indicating a child wishes to address the court, the judicial officer may inquire whether the child wishes to do so.
(c) Guidelines for determining whether addressing the court is in the child's best interest
(1)When a child indicates that he or she wishes to address the court, the judicial officer must consider whether involving the child in the proceedings is in the child's best interest.
(2)If the child indicating an interest in addressing the court is 14 years old or older, the judicial officer must hear from that child unless the court makes a finding that addressing the court is not in the child's best interest and states the reasons on the record.
(3)In determining whether addressing the court is in a child's best interest, the judicial officer should consider the following:
(A)Whether the child is of sufficient age and capacity to reason to form an intelligent preference as to custody or visitation (parenting time);
(B)Whether the child is of sufficient age and capacity to understand the nature of testimony;
(C)Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court;
(D)Whether the subject areas about which the child is anticipated to address the court are relevant to the court's decisionmaking process; and
(E)Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child's desire to do so.
(d) Guidelines for receiving testimony and other input
(1)If the court precludes the calling of a child as a witness, alternatives for the court to obtain information or other input from the child may include, but are not limited to:
(A)The child's participation in child custody mediation under Family Code section 3180;
(B)Appointment of a child custody evaluator or investigator under Family Code section 3110 or Evidence Code section 730;
(C)Admissible evidence provided by the parents, parties, or witnesses in the proceeding;
(D)Information provided by a child custody recommending counselor authorized to provide recommendations under Family Code section 3183(a); and
(E)Information provided from a child interview center or professional so as to avoid unnecessary multiple interviews.
(2)If the court precludes the calling of a child as a witness and specifies one of the other alternatives, the court must require that the information or evidence obtained by alternative means and provided by a professional or nonparty:
(A)Be in writing and fully document the child's views on the matters on which the child wished to express an opinion;
(B)Describe the child's input in sufficient detail to assist the court in its adjudication process;
(C)Be provided to the court and to the parties by an individual who will be available for testimony and cross-examination; and
(D)Be filed in the confidential portion of the family law file.
(3)On deciding to take the testimony of a child, the judicial officer should balance the necessity of taking the child's testimony in the courtroom with parents and attorneys present with the need to create an environment in which the child can be open and honest. In each case in which a child's testimony will be taken, courts should consider:
(A)Where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child on the record in chambers;
(B)Who should be present when the testimony is taken, such as: both parents and their attorneys, only attorneys in the case in which both parents are represented, the child's attorney and parents, or only a court reporter with the judicial officer;
(C)How the child will be questioned, such as whether only the judicial officer will pose questions that the parties have submitted, whether attorneys or parties will be permitted to cross-examine the child, or whether a child advocate or expert in child development will ask the questions in the presence of the judicial officer and parties or a court reporter; and
(D)Whether a court reporter is available in all instances, but especially when testimony may be taken outside the presence of the parties and their attorneys and, if not, whether it will be possible to provide a listening device so that testimony taken in chambers may be heard simultaneously by the parents and their attorneys in the courtroom or to otherwise make a record of the testimony.
(4)In taking testimony from a child, the court must take special care to protect the child from harassment or embarrassment and to restrict the unnecessary repetition of questions. The court must also take special care to ensure that questions are stated in a form that is appropriate to the witness's age or cognitive level. If the child is not represented by an attorney, the court must inform the child in an age-appropriate manner about the limitations on confidentiality and that the information provided to the court will be on the record and provided to the parties in the case. In the process of listening to and inviting the child's input, the court must allow but not require the child to state a preference regarding custody or visitation and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.
(5)In any case in which a child will be called to testify, the court may consider the appointment of minor's counsel for that child. The court may consider whether such appointment will cause unnecessary delay or otherwise interfere with the child's ability to participate in the process. In addition to adhering to the requirements for minor's counsel under Family Code section 3151 and rules 5.240, 5.241, and 5.242, minor's counsel must:
(A)Provide information to the child in an age-appropriate manner about the limitations on confidentiality and indicate to the child the possibility that information provided to the court will be on the record and provided to the parties in the case;
(B)Allow but not require the child to state a preference regarding custody or visitation (parenting time) and, in an age-appropriate manner, provide information about the process by which the court will make a decision;
(C)Provide procedures relevant to the child's participation and, if appropriate, provide an orientation to the courtroom where the child will be testifying; and
(D)Inform the parties and then the court about the client's desire to provide input.
(6)No testimony of a child may be received without such testimony being heard on the record or in the presence of the parties. This requirement may not be waived by stipulation.
(e) Responsibilities of court-connected or appointed professionals
A child custody evaluator, a child custody recommending counselor, an investigator, or a mediator appointed or assigned to meet with a child in a family court proceeding must:
(1)Provide information to the child in an age-appropriate manner about the limitations on confidentiality and the possibility that information provided to the professional may be shared with the court on the record and provided to the parties in the case;
(2)Allow but not require the child to state a preference regarding custody and visitation (parenting time), and, in an age-appropriate manner, provide information about the process by which the court will make a decision; and
(3)Provide to the parents of the child participating in the court process information about local court procedures relevant to the child's participation and information about how to best support the child in an age-appropriate manner during the court process.
(f) Methods of providing information to parents and supporting children
Courts should provide information to parties and parents and support for children when children want to participate or testify or are otherwise involved in family law proceedings. Such methods may include but are not limited to:
(1)Having court-connected professionals meet jointly or separately with the parents or parties to discuss alternatives to having a child provide direct testimony;
(2)Providing an orientation for a child about the court process and the role of the judicial officer in making decisions, how the courtroom or chambers will be set up, and what participating or testifying will entail;
(3)Providing information to parents or parties before and after a child participates or testifies so that they can consider the possible effect on their child of participating or not participating in a given case;
(4)Including information in child custody mediation orientation presentations and publications about a child's participation in family law proceedings;
(5)Providing a children's waiting room; and
(6)Providing an interpreter for the child, if needed.
(g) Education and training
Education and training content for court staff and judicial officers should include information on children's participation in family court processes, methods other than direct testimony for receiving input from children, and procedures for taking children's testimony.
Rule 5.250 adopted effective January 1, 2012.
Advisory Committee Comment
Rule 5.250 does not apply to probate guardianships except as and to the extent that the rule is incorporated or expressly made applicable by a rule of court in title 7 of the California Rules of Court.
Title 5, Family and Juvenile Rules-Division 1, Family Rules-Chapter 6, Certification of Statewide Uniform Guideline Support Calculators amended effective January 1, 2009.
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Rule 10.463. Education requirements for family court judges and subordinate judicial officers
Each judge or subordinate judicial officer whose primary assignment is to hear family law matters or who is the sole judge hearing family law matters must complete the following education:
(a) Basic family law education
Within six months of beginning a family law assignment, or within one year of beginning a family law assignment in courts with five or fewer judges, the judge or subordinate judicial officer must complete a basic educational program on California family law and procedure designed primarily for judicial officers. A judge or subordinate judicial officer who has completed the basic educational program need not complete the basic educational program again. All other judicial officers who hear family law matters, including retired judges who sit on court assignment, must complete appropriate family law educational programs.
(Subd (a) amended effective January 1, 2008; adopted as (1) effective January 1, 1992; previously amended and lettered effective January 1, 2003.)
(b) Continuing family law education
The judge or subordinate judicial officer must complete a periodic update on new developments in California family law and procedure.
(Subd (b) amended effective January 1, 2008; adopted as (2) effective January 1, 1992; previously amended and lettered effective January 1, 2003.)
(c) Other family law education
To the extent that judicial time and resources are available, the judge or subordinate judicial officer must complete additional educational programs on other aspects of family law including interdisciplinary subjects relating to the family.
(Subd (c) amended effective January 1, 2008; adopted as (3) effective January 1, 1992; previously amended and lettered effective January 1, 2003.)
Rule 10.463 amended and renumbered effective January 1, 2008; adopted as rule 1200 effective January 1, 1992; previously amended and renumbered as rule 5.30 effective January 1, 2003.
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