Header Logo

CALIFORNIA STATUTES AND RULES OF COURT RELEVANT TO ONGOING EDUCATION FOR MEDIATORS

Last Updated: 8/26/12

Statutes Relevant to Mediator Training:
California Family Code
1815
1816
3110.5
Rules of Court Relevant to Mediator Training:
California Rules of Court
5.210
5.215
5.220
5.230


CALIFORNIA FAMILY CODE

 

§1815.  (a) A person employed as a supervising counselor of
conciliation or as an associate counselor of conciliation shall have
all of the following minimum qualifications:
   (1) A master's degree in psychology, social work, marriage, family
and child counseling, or other behavioral science substantially
related to marriage and family interpersonal relationships.
   (2) At least two years of experience in counseling or
psychotherapy, or both, preferably in a setting related to the areas
of responsibility of the family conciliation court and with the
ethnic population to be served.
   (3) Knowledge of the court system of California and the procedures
used in family law cases.
   (4) Knowledge of other resources in the community that clients can
be referred to for assistance.
   (5) Knowledge of adult psychopathology and the psychology of
families.
   (6) Knowledge of child development, child abuse, clinical issues
relating to children, the effects of divorce on children, the effects
of domestic violence on children, and child custody research
sufficient to enable a counselor to assess the mental health needs of
children.
   (7) Training in domestic violence issues as described in Section
1816.
   (b) The family conciliation court may substitute additional
experience for a portion of the education, or additional education
for a portion of the experience, required under subdivision (a).
   (c) This section does not apply to any supervising counselor of
conciliation who was in office on March 27, 1980.


> > Return to Top

 
§1816.  (a)  For purposes of this section, the following definitions
apply:
   (1) "Eligible provider" means the Administrative Office of the
Courts or an educational institution, professional association,
professional continuing education group, a group connected to the
courts, or a public or private group that has been authorized by the
Administrative Office of the Courts to provide domestic violence
training.
   (2) "Evaluator" means a supervising or associate counselor
described in Section 1815, a mediator described in Section 3164, a
court-connected or private child custody evaluator described in
Section 3110.5, or a court-appointed investigator or evaluator as
described in Section 3110 or Section 730 of the Evidence Code.
   (b) An evaluator shall participate in a program of continuing
instruction in domestic violence, including child abuse, as may be
arranged and provided to that evaluator. This training may utilize
domestic violence training programs conducted by nonprofit community
organizations with an expertise in domestic violence issues.
   (c) Areas of basic instruction shall include, but are not limited
to, the following:
   (1) The effects of domestic violence on children.
   (2) The nature and extent of domestic violence.
   (3) The social and family dynamics of domestic violence.
   (4) Techniques for identifying and assisting families affected by
domestic violence.
   (5) Interviewing, documentation of, and appropriate
recommendations for families affected by domestic violence.
   (6) The legal rights of, and remedies available to, victims.
   (7) Availability of community and legal domestic violence
resources.
   (d) An evaluator shall also complete 16 hours of advanced training
within a 12-month period. Four hours of that advanced training shall
include community resource networking intended to acquaint the
evaluator with domestic violence resources in the geographical
communities where the family being evaluated may reside. Twelve hours
of instruction, as approved by the Administrative Office of the
Courts, shall include all of the following:
   (1) The appropriate structuring of the child custody evaluation
process, including, but not limited to, all of the following:
   (A) Maximizing safety for clients, evaluators, and court
personnel.
   (B) Maintaining objectivity.
   (C) Providing and gathering balanced information from the parties
and controlling for bias.
   (D) Providing separate sessions at separate times as described in
Section 3113.
   (E) Considering the impact of the evaluation report and
recommendations with particular attention to the dynamics of domestic
violence.
   (2) The relevant sections of local, state, and federal laws,
rules, or regulations.
   (3) The range, availability, and applicability of domestic
violence resources available to victims, including, but not limited
to, all of the following:
   (A) Shelters for battered women.
   (B) Counseling, including drug and alcohol counseling.
   (C) Legal assistance.
   (D) Job training.
   (E) Parenting classes.
   (F) Resources for a victim who is an immigrant.
   (4) The range, availability, and applicability of domestic
violence intervention available to perpetrators, including, but not
limited to, all of the following:
   (A) Certified treatment programs described in Section 1203.097 of
the Penal Code.
   (B) Drug and alcohol counseling.
   (C) Legal assistance.
   (D) Job training.
   (E) Parenting classes.
   (5) The unique issues in a family and psychological assessment in
a domestic violence case, including all of the following:
   (A) The effects of exposure to domestic violence and psychological
trauma on children, the relationship between child physical abuse,
child sexual abuse, and domestic violence, the differential family
dynamics related to parent-child attachments in families with
domestic violence, intergenerational transmission of familial
violence, and manifestations of post-traumatic stress disorders in
children.
   (B) The nature and extent of domestic violence, and the
relationship of gender, class, race, culture, and sexual orientation
to domestic violence.
   (C) Current legal, psychosocial, public policy, and mental health
research related to the dynamics of family violence, the impact of
victimization, the psychology of perpetration, and the dynamics of
power and control in battering relationships.
   (D) The assessment of family history based on the type, severity,
and frequency of violence.
   (E) The impact on parenting abilities of being a victim or
perpetrator of domestic violence.
   (F) The uses and limitations of psychological testing and
psychiatric diagnosis in assessing parenting abilities in domestic
violence cases.
   (G) The influence of alcohol and drug use and abuse on the
incidence of domestic violence.
   (H) Understanding the dynamics of high conflict relationships and
relationships between an abuser and victim.
   (I) The importance of and procedures for obtaining collateral
information from a probation department, children's protective
services, police incident report, a pleading regarding a restraining
order, medical records, a school, and other relevant sources.
   (J) Accepted methods for structuring safe and enforceable child
custody and parenting plans that ensure the health, safety, welfare,
and best interest of the child, and safeguards for the parties.
   (K) The importance of discouraging participants in child custody
matters from blaming victims of domestic violence for the violence
and from minimizing allegations of domestic violence, child abuse, or
abuse against a family member.
   (e) After an evaluator has completed the advanced training
described in subdivision (d), that evaluator shall complete four
hours of updated training annually that shall include, but is not
limited to, all of the following:
   (1) Changes in local court practices, case law, and state and
federal legislation related to domestic violence.
   (2) An update of current social science research and theory,
including the impact of exposure to domestic violence on children.
   (f) Training described in this section shall be acquired from an
eligible provider and that eligible provider shall comply with all of
the following:
   (1) Ensure that a training instructor or consultant delivering the
education and training programs either meets the training
requirements of this section or is an expert in the subject matter.
   (2) Monitor and evaluate the quality of courses, curricula,
training, instructors, and consultants.
   (3) Emphasize the importance of focusing child custody evaluations
on the health, safety, welfare, and best interest of the child.
   (4) Develop a procedure to verify that an evaluator completes the
education and training program.
   (5) Distribute a certificate of completion to each evaluator who
has completed the training. That certificate shall document the
number of hours of training offered, the number of hours the
evaluator completed, the dates of the training, and the name of the
training provider.
   (g) (1) If there is a local court rule regarding the procedure to
notify the court that an evaluator has completed training as
described in this section, the evaluator shall comply with that local
court rule.
   (2) Except as provided in paragraph (1), an evaluator shall attach
copies of his or her certificates of completion of the training
described in subdivision (d) and the most recent updated training
described in subdivision (e).
   (h) An evaluator may satisfy the requirement for 12 hours of
instruction described in subdivision (d) by training from an eligible
provider that was obtained on or after January 1, 1996. The advanced
training of that evaluator shall not be complete until that
evaluator completes the four hours of community resource networking
described in subdivision (d).
   (i) The Judicial Council shall develop standards for the training
programs. The Judicial Council shall solicit the assistance of
community organizations concerned with domestic violence and child
abuse and shall seek to develop training programs that will maximize
coordination between conciliation courts and local agencies concerned
with domestic violence.


> > Return to Top

 
§3110.5.  (a) No person may be a court-connected or private child
custody evaluator under this chapter unless the person has completed
the domestic violence and child abuse training program described in
Section 1816 and has complied with Rules 5.220 and 5.230 of the
California Rules of Court.
   (b) (1) On or before January 1, 2002, the Judicial Council shall
formulate a statewide rule of court that establishes education,
experience, and training requirements for all child custody
evaluators appointed pursuant to this chapter, Section 730 of the
Evidence Code, or Chapter 15 (commencing with Section 2032.010) of
Title 4 of Part 4 of the Code of Civil Procedure.
   (A) The rule shall require a child custody evaluator to declare
under penalty of perjury that he or she meets all of the education,
experience, and training requirements specified in the rule and, if
applicable, possesses a license in good standing. The Judicial
Council shall establish forms to implement this section. The rule
shall permit court-connected evaluators to conduct evaluations if
they meet all of the qualifications established by the Judicial
Council. The education, experience, and training requirements to be
specified for court-connected evaluators shall include, but not be
limited to, knowledge of the psychological and developmental needs of
children and parent-child relationships.
   (B) The rule shall require all evaluators to utilize comparable
interview, assessment, and testing procedures for all parties that
are consistent with generally accepted clinical, forensic,
scientific, diagnostic, or medical standards. The rule shall also
require evaluators to inform each adult party of the purpose, nature,
and method of the evaluation.
   (C) The rule may allow courts to permit the parties to stipulate
to an evaluator of their choosing with the approval of the court
under the circumstances set forth in subdivision (d). The rule may
require courts to provide general information about how parties can
contact qualified child custody evaluators in their county.
   (2) On or before January 1, 2004, the Judicial Council shall
include in the statewide rule of court created pursuant to this
section a requirement that all court-connected and private child
custody evaluators receive training in the nature of child sexual
abuse. The Judicial Council shall develop standards for this training
that shall include, but not be limited to, the following:
   (A) Children's patterns of hiding and disclosing sexual abuse
occurring in a family setting.
   (B) The effects of sexual abuse on children.
   (C) The nature and extent of child sexual abuse.
   (D) The social and family dynamics of child sexual abuse.
   (E) Techniques for identifying and assisting families affected by
child sexual abuse.
   (F) Legal rights, protections, and remedies available to victims
of child sexual abuse.
   (c) In addition to the education, experience, and training
requirements established by the Judicial Council pursuant to
subdivision (b), on or after January 1, 2005, no person may be a
child custody evaluator under this chapter, Section 730 of the
Evidence Code, or Chapter 15 (commencing with Section 2032.010) of
Title 4 of Part 4 of the Code of Civil Procedure unless the person
meets one of the following criteria:
   (1) He or she is licensed as a physician under Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code and either is a board certified psychiatrist or has
completed a residency in psychiatry.
   (2) He or she is licensed as a psychologist under Chapter 6.6
(commencing with Section 2900) of Division 2 of the Business and
Professions Code.
   (3) He or she is licensed as a marriage and family therapist under
Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code.
   (4) He or she is licensed as a clinical social worker under
Article 4 (commencing with Section 4996) of Chapter 14 of Division 2
of the Business and Professions Code.
   (5) He or she is a court-connected evaluator who has been
certified by the court as meeting all of the qualifications for
court-connected evaluators as specified by the Judicial Council
pursuant to subdivision (b).
   (d) Subdivision (c) does not apply in any case where the court
determines that there are no evaluators who meet the criteria of
subdivision (c) who are willing and available, within a reasonable
period of time, to perform child custody evaluations. In those cases,
the parties may stipulate to an individual who does not meet the
criteria of subdivision (c), subject to approval by the court.
   (e) A child custody evaluator who is licensed by the Medical Board
of California, the Board of Psychology, or the Board of Behavioral
Sciences shall be subject to disciplinary action by that board for
unprofessional conduct, as defined in the licensing law applicable to
that licensee.
   (f) On or after January 1, 2005, a court-connected or private
child custody evaluator may not evaluate, investigate, or mediate an
issue of child custody in a proceeding pursuant to this division
unless that person has completed child sexual abuse training as
required by this section.


> > Return to Top


California Rules of Court

 

Rule 5.210. Court-connected child custody mediation

(a) Authority

This rule of court is adopted under article VI, section 6 of the California Constitution and Family Code sections 211, 3160, and 3162(a).

(b) Purpose

This rule sets forth standards of practice and administration for court-connected child custody mediation services that are consistent with the requirements of Family Code section 3161.

(c) Definitions

(1)"Best interest of the child" is defined in Family Code section 3011.

(2)"Parenting plan" is a plan describing how parents or other appropriate parties will share and divide their decision making and caretaking responsibilities to protect the health, safety, welfare, and best interest of each child who is a subject of the proceedings.

(d) Responsibility for mediation services

(1)Each court must ensure that:

(A)Mediators are impartial, competent, and uphold the standards of practice contained in this rule of court.

(B)Mediation services and case management procedures implement state law and allow sufficient time for parties to receive orientation, participate fully in mediation, and develop a comprehensive parenting plan without unduly compromising each party's right to due process and a timely resolution of the issues.

(C)Mediation services demonstrate accountability by:

(i)Providing for acceptance of and response to complaints about a mediator's performance;

(ii)Participating in statewide data collection efforts; and

(iii)Disclosing the use of interns to provide mediation services.

(D)The mediation program uses a detailed intake process that screens for, and informs the mediator about, any restraining orders or safety-related issues affecting any party or child named in the proceedings to allow compliance with relevant law or court rules before mediation begins.

(E)Whenever possible, mediation is available from bilingual mediators or other interpreter services that meet the requirements of Evidence Code sections 754(f) and 755(a) and section 18 of the California Standards of Judicial Administration.

(F)Mediation services protect, in accordance with existing law, party confidentiality in:

(i)Storage and disposal of records and any personal information accumulated during the mediation process;

(ii)Interagency coordination or cooperation regarding a particular family or case; and

(iii)Management of child abuse reports and related documents.

(G)Mediation services provide a written description of limitations on the confidentiality of the process.

(H)Within one year of the adoption of this rule, the court adopts a local court rule regarding ex parte communications.

(2)Each court-connected mediator must:

(A)Maintain an overriding concern to integrate the child's best interest within the family context;

(B)Inform the parties and any counsel for a minor child if the mediator will make a recommendation to the court as provided under Family Code section 3184; and

(C)Use reasonable efforts and consider safety issues to:

(i)Facilitate the family's transition and reduce acrimony by helping the parties improve their communication skills, focus on the child's needs and areas of stability, identify the family's strengths, and locate counseling or other services;

(ii)Develop a comprehensive parenting agreement that addresses each child's current and future developmental needs; and

(iii)Control for potential power imbalances between the parties during mediation.

(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2002, and January 1, 2003.)

(e) Mediation process

All court-connected mediation processes must be conducted in accordance with state law and include:

(1)Review of the intake form and court file, if available, before the start of mediation;

(2)Oral or written orientation or parent education that facilitates the parties' informed and self-determined decision making about:

(A)The types of disputed issues generally discussed in mediation and the range of possible outcomes from the mediation process;

(B)The mediation process, including the mediator's role; the circumstances that may lead the mediator to make a particular recommendation to the court; limitations on the confidentiality of the process; and access to information communicated by the parties or included in the mediation file;

(C)How to make best use of information drawn from current research and professional experience to facilitate the mediation process, parties' communication, and co-parenting relationship; and

(D)How to address each child's current and future developmental needs;

(3)Interviews with children at the mediator's discretion and consistent with Family Code section 3180(a). The mediator may interview the child alone or together with other interested parties, including stepparents, siblings, new or step-siblings, or other family members significant to the child. If interviewing a child, the mediator must:

(A)Inform the child in an age-appropriate way of the mediator's obligation to disclose suspected child abuse and neglect and the local policies concerning disclosure of the child's statements to the court; and

(B)With parental consent, coordinate interview and information exchange among agency or private professionals to reduce the number of interviews a child might experience;

(4)Assistance to the parties, without undue influence or personal bias, in developing a parenting plan that protects the health, safety, welfare, and best interest of the child and that optimizes the child's relationship with each party by including, as appropriate, provisions for supervised visitation in high-risk cases; designations for legal and physical custody; a description of each party's authority to make decisions that affect the child; language that minimizes legal, mental health, or other jargon; and a detailed schedule of the time a child is to spend with each party, including vacations, holidays, and special occasions, and times when the child's contact with a party may be interrupted;

(5)Extension of time to allow the parties to gather additional information if the mediator determines that such information will help the discussion proceed in a fair and orderly manner or facilitate an agreement;

(6)Suspension or discontinuance of mediation if allegations of child abuse or neglect are made until a designated agency performs an investigation and reports a case determination to the mediator;

(7)Termination of mediation if the mediator believes that he or she is unable to achieve a balanced discussion between the parties;

(8)Conclusion of mediation with:

(A)A written parenting plan summarizing the parties' agreement or mediator's recommendation that is given to counsel or the parties before the recommendation is presented to the court; and

(B)A written or oral description of any subsequent case management or court procedures for resolving one or more outstanding custody or visitation issues, including instructions for obtaining temporary orders;

(9)Return to mediation to resolve future custody or visitation disputes.

(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2003.)

(f) Training, continuing education, and experience requirements for mediator, mediation supervisor, and family court services director

As specified in Family Code sections 1815 and 1816:

(1)All mediators, mediation supervisors, and family court service directors must:

(A)Complete a minimum of 40 hours of custody and visitation mediation training within the first six months of initial employment as a court-connected mediator;

(B)Annually complete 8 hours of related continuing education programs, conferences, and workshops. This requirement is in addition to the annual 4-hour domestic violence update training described in rule 5.215; and

(C)Participate in performance supervision and peer review.

(2)Each mediation supervisor and family court services director must complete at least 24 hours of additional training each calendar year. This requirement may be satisfied in part by the domestic violence training required by Family Code section 1816.

(Subd (f) amended effective January 1, 2005; previously amended effective January 1, 2003.)

(g) Education and training providers

Only education and training acquired from eligible providers meet the requirements of this rule. "Eligible providers" includes the Administrative Office of the Courts and may include educational institutions, professional associations, professional continuing education groups, public or private for-profit or not-for-profit groups, and court-connected groups.

(1)Eligible providers must:

(A)Ensure that the training instructors or consultants delivering the education and training programs either meet the requirements of this rule or are experts in the subject matter;

(B)Monitor and evaluate the quality of courses, curricula, training, instructors, and consultants;

(C)Emphasize the importance of focusing child custody mediations on the health, safety, welfare, and best interest of the child;

(D)Develop a procedure to verify that participants complete the education and training program; and

(E)Distribute a certificate of completion to each person who has completed the training. The certificate must document the number of hours of training offered, the number of hours the person completed, the dates of the training, and the name of the training provider.

(2)Effective July 1, 2005, all education and training programs must be approved by the Administrative Office of the Courts.

(Subd (g) adopted effective January 1, 2005.)

(h) Ethics

Mediation must be conducted in an atmosphere that encourages trust in the process and a perception of fairness. To that end, mediators must:

(1)Meet the practice and ethical standards of the Code of Ethics for the Court Employees of California and of related law;

(2)Maintain objectivity, provide and gather balanced information for both parties, and control for bias;

(3)Protect the confidentiality of the parties and the child in making any collateral contacts and not release information about the case to any individual except as authorized by the court or statute;

(4)Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;

(5)Consider the health, safety, welfare, and best interest of the child in all phases of the process, including interviews with parents, extended family members, counsel for the child, and other interested parties or collateral contacts;

(6)Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist;

(7)Operate within the limits of his or her training and experience and disclose any limitations or bias that would affect his or her ability to conduct the mediation;

(8)Not require children to state a custodial preference;

(9)Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;

(10)Disclose to the court, parties, attorneys for the parties, and attorney for the child conflicts of interest or dual relationships and not accept any appointment except by court order or the parties' stipulation;

(11)Be sensitive to the parties' socioeconomic status, gender, race, ethnicity, cultural values, religion, family structures, and developmental characteristics; and

(12)Disclose any actual or potential conflicts of interest. In the event of a conflict of interest, the mediator must suspend mediation and meet and confer in an effort to resolve the conflict of interest to the satisfaction of all parties or according to local court rules. The court may order mediation to continue with another mediator or offer the parties alternatives. The mediator cannot continue unless the parties agree in writing to continue mediation despite the disclosed conflict of interest.

(Subd (h) amended effective January 1, 2007; adopted as subd (g); previously amended effective January 1, 2003; previously relettered effective January 1, 2005.)

Rule 5.210 amended effective January 1, 2007; adopted as rule 1257.1 effective July 1, 2001; amended and renumbered effective January 1, 2003; previously amended effective January 1, 2003, and January 1, 2005.

> > Return to Top

 

Rule 5.215. Domestic violence protocol for Family Court Services

(a) Authority

This rule of court is adopted under Family Code sections 211, 1850(a), and 3170(b).

(Subd (a) amended effective January 1, 2007.)

(b) Purpose

This rule sets forth the protocol for Family Court Services' handling of domestic violence cases consistent with the requirement of Family Code section 3170(b).

(c) Definitions

(1)"Domestic violence" is used as defined in Family Code sections 6203 and 6211.

(2)"Protective order" is used as defined in Family Code section 6215, "Emergency protective order"; Family Code section 6218, "Protective order"; and Penal Code section 136.2 (orders by court). "Domestic violence restraining order" is synonymous with "protective order."

(3)"Mediation" refers to proceedings described in Family Code section 3161.

(4)"Evaluation" and "investigation" are synonymous terms.

(5)"Family Court Services" refers to court-connected child custody services and child custody mediation made available by superior courts under Family Code section 3160.

(6)"Family Court Services staff" refers to contract and employee mediators, evaluators, investigators, and counselors who provide services on behalf of Family Court Services.

(7)"Differential domestic violence assessment" is a process used to assess the nature of any domestic violence issues in the family so that Family Court Services may provide services in such a way as to protect any victim of domestic violence from intimidation, provide services for perpetrators, and correct for power imbalances created by past and prospective violence.

(Subd (c) amended effective January 1, 2003.)

(d) Family Court Services: Description and duties

(1)Local protocols

Family Court Services must handle domestic violence cases in accordance with pertinent state laws and all applicable rules of court and must develop local protocols in accordance with this rule.

(2)Family Court Services duties relative to domestic violence cases

Family Court Services is a court-connected service that must:

(A)Identify cases in Family Court Services that involve domestic violence, and code Family Court Services files to identify such cases;

(B)Make reasonable efforts to ensure the safety of victims, children, and other parties when they are participating in services provided by Family Court Services;

(C)Make appropriate referrals; and

(D)Conduct a differential domestic violence assessment in domestic violence cases and offer appropriate services as available, such as child custody evaluation, parent education, parent orientation, supervised visitation, child custody mediation, relevant education programs for children, and other services as determined by each superior court.

(3)No negotiation of violence

Family Court Services staff must not negotiate with the parties about using violence with each other, whether either party should or should not obtain or dismiss a restraining order, or whether either party should cooperate with criminal prosecution.

(4) Domestic violence restraining orders

Notwithstanding the above, to the extent permitted under Family Code section 3183(c), in appropriate cases, Family Court Services staff may recommend that restraining orders be issued, pending determination of the controversy, to protect the well-being of the child involved in the controversy.

(5) Providing information

Family Court Services staff must provide information to families accessing their services about the effects of domestic violence on adults and children. Family Court Services programs, including but not limited to orientation programs, must provide information and materials that describe Family Court Services policy and procedures with respect to domestic violence. Where possible, the videotapes provided should be closed-captioned.

(6) Separate sessions

In a Family Court Services case in which there has been a history of domestic violence between the parties or in which a protective order as defined in Family Code section 6218 is in effect, at the request of the party who is alleging domestic violence in a written declaration under penalty of perjury or who is protected by the order, the Family Court Services mediator, counselor, evaluator, or investigator must meet with the parties separately and at separate times. When appropriate, arrangements for separate sessions must protect the confidentiality of each party's times of arrival, departure, and meeting with Family Court Services. Family Court Services must provide information to the parties regarding their options for separate sessions under Family Code sections 3113 and 3181. If domestic violence is discovered after mediation or evaluation has begun, the Family Court Services staff member assigned to the case must confer with the parties separately regarding safety-related issues and the option of continuing in separate sessions at separate times. Family Court Services staff, including support staff, must not respond to a party's request for separate sessions as though it were evidence of his or her lack of cooperation with the Family Court Services process.

(7) Referrals

Family Court Services staff, where applicable, must refer family members to appropriate services. Such services may include but are not limited to programs for perpetrators, counseling and education for children, parent education, services for victims, and legal resources, such as family law facilitators.

(8)Community resources

Family Court Services should maintain a liaison with community-based services offering domestic violence prevention assistance and support so that referrals can be made based on an understanding of available services and service providers.

(Subd (d) amended effective January 1, 2003.)

(e) Intake

(1)Court responsibility

Each court must ensure that Family Court Services programs use a detailed intake process that screens for, and informs staff about, any restraining orders, dependency petitions under Welfare and Institutions Code section 300, and other safety-related issues affecting any party or child named in the proceedings.

(2)Intake form

Any intake form that an agency charged with providing family court services requires the parties to complete before the commencement of mediation or evaluation must state that, if a party alleging domestic violence in a written declaration under penalty of perjury or a party protected by a protective order so requests, the Family Court Services staff must meet with the parties separately and at separate times.

(3)Review of intake form and case file

All Family Court Services procedures must be conducted in accordance with state law and must include review of intake forms and court files, when available, by appropriate staff.

(f) Screening

(1)Identification of domestic violence

Screening for a history of domestic violence incidents must be done throughout the Family Court Services process. As early in the case as possible, Family Court Services staff should make every effort to identify cases in which incidents of domestic violence are present. The means by which Family Court Services elicits screening information may be determined by each program. Screening techniques may include but are not limited to questionnaires, telephone interviews, standardized screening devices, and face-to-face interviews.

(2)Procedures for identification

Procedures for identifying domestic violence may include, but are not limited to: (a) determination of an existing emergency protective order or domestic violence restraining order concerning the parties or minor; (b) review of court papers and declarations; (c) telephone interviews; (d) use of an intake form; (e) orientation; (f) information from attorneys, shelters, hospital reports, Child Protective Services, police reports, and criminal background checks; and (g) other collateral sources. Questions specific to incidents of domestic violence should request the following information: date of the parties' separation, frequency of domestic violence, most recent as well as past incidents of domestic violence, concerns about future domestic violence, identities of children and other individuals present at domestic violence incidents or otherwise exposed to the domestic violence, and severity of domestic violence.

(3)Context for screening

In domestic violence cases in which neither party has requested separate sessions at separate times, Family Court Services staff must confer with the parties separately and privately to determine whether joint or separate sessions are appropriate.

(g) Safety issues

(1)Developing a safety plan

When domestic violence is identified or alleged in a case, Family Court Services staff must consult with the party alleging domestic violence away from the presence of the party against whom such allegations are made and discuss the existence of or need for a safety plan. Safety planning may include but is not limited to discussion of safe housing, workplace safety, safety for other family members and children, access to financial resources, and information about local domestic violence agencies.

(2)Safety procedures

Each Family Court Services office should develop safety procedures for handling domestic violence cases.

(3)Confidential addresses

Where appropriate, Family Court Services staff must make reasonable efforts to keep residential addresses, work addresses, and contact information-including but not limited to telephone numbers and e-mail addresses-confidential in all cases and on all Family Court Services documents.

(Subd (g) amended effective January 1, 2007.)

(h) Support persons

(1)Support person

Family Court Services staff must advise the party protected by a protective order of the right to have a support person attend any mediation orientation or mediation sessions, including separate mediation sessions, under Family Code section 6303.

(2)Excluding support person

A Family Court Services staff person may exclude a domestic violence support person from a mediation session if the support person participates in the mediation session or acts as an advocate or the presence of a particular support person disrupts the process of mediation. The presence of the support person does not waive the confidentiality of the process, and the support person is bound by the confidentiality of the process.

(Subd (h) amended effective January 1, 2003.)

(i) Accessibility of services

To effectively address domestic violence cases, the court must make reasonable efforts to ensure the availability of safe and accessible services that include, but are not limited to:

(1)Language accessibility

Whenever possible, Family Court Services programs should be conducted in the languages of all participants, including those who are deaf. When the participants use only a language other than spoken English and the Family Court Services staff person does not speak their language, an interpreter-certified whenever possible-should be assigned to interpret at the session. A minor child of the parties must not be used as an interpreter. An adult family member may act as an interpreter only when appropriate interpreters are not available. When a family member is acting as an interpreter, Family Court Services staff should attempt to establish, away from the presence of the potential interpreter and the other party, whether the person alleging domestic violence is comfortable with having that family member interpret for the parties.

(2)Facilities design

To minimize contact between the parties and promote safety in domestic violence cases, courts must give consideration to the design of facilities. Such considerations must include but are not limited to the following: separate and secure waiting areas, separate conference rooms for parent education and mediation, signs providing directions to Family Court Services, and secure parking for users of Family Court Services.

(j) Training and education

(1)Training, continuing education, and experience requirements for Family Court Services staff

All Family Court Services staff must participate in programs of continuing instruction in issues related to domestic violence, including child abuse, as may be arranged for and provided to them, under Family Code section 1816(a).

(2)Advanced domestic violence training

Family Court Services staff must complete 16 hours of advanced domestic violence training within the first 12 months of employment and 4 hours of domestic violence update training each year thereafter. The content of the 16 hours of advanced domestic violence training and 4 hours of domestic violence update training must be the same as that required for court-appointed child custody investigators and evaluators as stated in rule 5.230. Those staff members employed by Family Court Services on January 1, 2002, who have not already fulfilled the requirements of rule 5.230 must participate in the 16-hour training within one year of the rule's effective date.

(3)Support staff

Family Court Services programs should, where possible, enable support staff, including but not limited to clerical staff, to participate in training on domestic violence and in handling domestic violence cases appropriately.

(Subd (j) amended effective January 1, 2003.)

Rule 5.215 amended effective January 1, 2007; adopted as rule 1257.2 effective January 1, 2002; previously amended and renumbered effective January 1, 2003.

> > Return to Top

 

Rule 5.220. Court-ordered child custody evaluations

(a) Authority

This rule of court is adopted under Family Code sections 211 and 3117.

(Subd (a) amended effective January 1, 2007.)

(b) Purpose

Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. This rule governs both court-connected and private child custody evaluators appointed under Family Code section 3111, Evidence Code section 730, or Code of Civil Procedure section 2032.

(Subd (b) amended effective January 1, 2003.)

(c) Definitions

For purposes of this rule:

(1)A "child custody evaluator" is a court-appointed investigator as defined in Family Code section 3110.

(2)The "best interest of the child" is as defined in Family Code section 3011.

(3)A "child custody evaluation" is an expert investigation and analysis of the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues.

(4)A "full evaluation, investigation, or assessment" is a comprehensive examination of the health, safety, welfare, and best interest of the child.

(5)A "partial evaluation, investigation, or assessment" is an examination of the health, safety, welfare, and best interest of the child that is limited by court order in either time or scope.

(6)"Evaluation," "investigation," and "assessment" are synonymous.

(Subd (c) amended effective January 1, 2003.)

(d) Responsibility for evaluation services

(1)Each court must:

(A)Adopt a local rule by January 1, 2000, to:

(i)Implement this rule of court;

(ii)Determine whether a peremptory challenge to a court-appointed evaluator is allowed and when the challenge must be exercised. The rules must specify whether a family court services staff member, other county employee, a mental health professional, or all of them may be challenged;

(iii)Allow evaluators to petition the court to withdraw from a case;

(iv)Provide for acceptance of and response to complaints about an evaluator's performance; and

(v)Address ex parte communications.

(B)Give the evaluator, before the evaluation begins, a copy of the court order that specifies:

(i)The appointment of the evaluator under Evidence Code section 730, Family Code section 3110, or Code of Civil Procedure 2032; and

(ii)The purpose and scope of the evaluation.

(C)Require child custody evaluators to adhere to the requirements of this rule.

(D)Determine and allocate between the parties any fees or costs of the evaluation.

(2)The child custody evaluator must:

(A)Consider the health, safety, welfare, and best interest of the child within the scope and purpose of the evaluation as defined by the court order;

(B)Strive to minimize the potential for psychological trauma to children during the evaluation process; and

(C)Include in the initial meeting with each child an age-appropriate explanation of the evaluation process, including limitations on the confidentiality of the process.

(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2003.)

(e) Scope of evaluations

All evaluations must include:

(1)A written explanation of the process that clearly describes the:

(A)Purpose of the evaluation;

(B)Procedures used and the time required to gather and assess information and, if psychological tests will be used, the role of the results in confirming or questioning other information or previous conclusions;

(C)Scope and distribution of the evaluation report;

(D)Limitations on the confidentiality of the process; and

(E)Cost and payment responsibility for the evaluation.

(2)Data collection and analysis that are consistent with the requirements of Family Code section 3118; that allow the evaluator to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child's developmental needs; the quality of attachment to each parent and that parent's social environment; and reactions to the separation, divorce, or parental conflict. This process may include:

(A)Reviewing pertinent documents related to custody, including local police records;

(B)Observing parent-child interaction (unless contraindicated to protect the best interest of the child);

(C)Interviewing parents conjointly, individually, or both conjointly and individually (unless contraindicated in cases involving domestic violence), to assess:

(i)Capacity for setting age-appropriate limits and for understanding and responding to the child's needs;

(ii)History of involvement in caring for the child;

(iii)Methods for working toward resolution of the child custody conflict;

(iv)History of child abuse, domestic violence, substance abuse, and psychiatric illness; and

(v)Psychological and social functioning;

(D)Conducting age-appropriate interviews and observation with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child;

(E)Collecting relevant corroborating information or documents as permitted by law; and

(F)Consulting with other experts to develop information that is beyond the evaluator's scope of practice or area of expertise.

(3)A written or oral presentation of findings that is consistent with Family Code section 3111, Family Code section 3118, or Evidence Code section 730. In any presentation of findings, the evaluator must:

(A)Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached;

(B)Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews;

(C)Only make a custody or visitation recommendation for a party who has been evaluated. This requirement does not preclude the evaluator from making an interim recommendation that is in the best interest of the child; and

(D)Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interest of the child if making any recommendations to the court regarding a parenting plan.

(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2003, and July 1, 2003.)

(f) Cooperation with professionals in another jurisdiction

When one party resides in another jurisdiction, the custody evaluator may rely on another qualified neutral professional for assistance in gathering information. In order to ensure a thorough and comparably reliable out-of-jurisdiction evaluation, the evaluator must:

(1)Make a written request that includes, as appropriate:

(A)A copy of all relevant court orders;

(B)An outline of issues to be explored;

(C)A list of the individuals who must or may be contacted;

(D)A description of the necessary structure and setting for interviews;

(E)A statement as to whether a home visit is required;

(F)A request for relevant documents such as police records, school reports, or other document review; and

(G)A request that a written report be returned only to the evaluator and that no copies of the report be distributed to parties or attorneys;

(2)Provide instructions that limit the out-of-jurisdiction report to factual matters and behavioral observations rather than recommendations regarding the overall custody plan; and

(3)Attach and discuss the report provided by the professional in another jurisdiction in the evaluator's final report.

(Subd (f) amended effective January 1, 2003.)

(g) Requirements for evaluator qualifications, training, continuing education, and experience

All child custody evaluators must meet the qualifications, training, and continuing education requirements specified in Family Code sections 1815, 1816, and 3111, and rules 5.225 and 5.230.

(Subd (g) amended effective January 1, 2004; previously amended effective July 1, 1999, and January 1, 2003.)

(h) Ethics

In performing an evaluation, the child custody evaluator must:

(1)Maintain objectivity, provide and gather balanced information for both parties, and control for bias;

(2)Protect the confidentiality of the parties and children in collateral contacts and not release information about the case to any individual except as authorized by the court or statute;

(3)Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;

(4)Consider the health, safety, welfare, and best interest of the child in all phases of the process, including interviews with parents, extended family members, counsel for the child, and other interested parties or collateral contacts;

(5)Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist;

(6)Operate within the limits of the evaluator's training and experience and disclose any limitations or bias that would affect the evaluator's ability to conduct the evaluation;

(7)Not pressure children to state a custodial preference;

(8)Inform the parties of the evaluator's reporting requirements, including, but not limited to, suspected child abuse and neglect and threats to harm one's self or another person;

(9)Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;

(10)Disclose to the court, parties, attorney for a party, and attorney for the child conflicts of interest or dual relationships; and not accept any appointment except by court order or the parties' stipulation; and

(11)Be sensitive to the socioeconomic status, gender, race, ethnicity, cultural values, religion, family structures, and developmental characteristics of the parties.

(Subd (h) amended effective January 1, 2007; previously amended effective January 1, 2003.)

(i) Service of the evaluation report

A Notice Regarding Confidentiality of Child Custody Evaluation Report (form FL-328) must be attached as the first page of the child custody evaluation report when a court-ordered child custody evaluation report is filed with the clerk of the court and served on the parties or their attorneys, and any counsel appointed for the child, to inform them of the confidential nature of the report and the potential consequences for the unwarranted disclosure of the report.

(Subd (i) adopted effective January 1, 2010.)

(j) Cost-effective procedures for cross-examination of evaluators

Each local court must develop procedures for expeditious and cost-effective cross-examination of evaluators, including, but not limited to, consideration of the following:

(1)Videoconferences;

(2)Telephone conferences;

(3)Audio or video examination; and

(4)Scheduling of appearances.

(Subd (j) relettered effective January 1, 2010; adopted as subd (i); previously amended effective January 1, 2003.)

Rule 5.220 amended effective January 1, 2010; adopted as rule 1257.3 effective January 1, 1999; previously amended and renumbered effective January 1, 2003; previously amended effective July 1, 1999, July 1, 2003, January 1, 2004, and January 1, 2007.

> > Return to Top

 

Rule 5.230. Domestic violence training standards for court-appointed child custody investigators and evaluators

(a) Authority

This rule of court is adopted under Family Code sections 211 and 3111(d) and (e).

(Subd (a) amended effective January 1, 2007.)

(b) Purpose

Consistent with Family Code sections 3020 and 3111, the purposes of this rule are to require domestic violence training for all court-appointed persons who evaluate or investigate child custody matters and to ensure that this training reflects current research and consensus about best practices for conducting child custody evaluations by prescribing standards that training in domestic violence must meet. Effective January 1, 1998, no person may be a court-appointed investigator under Family Code section 3111(d) or Evidence Code section 730 unless the person has completed domestic violence training described here and in Family Code section 1816.

(Subd (b) amended effective January 1, 2003.)

(c) Definitions

For purposes of this rule, "court-appointed investigator" is considered to be synonymous with "court-appointed evaluator" as defined in Family Code section 3110.

(d) Mandatory training

Persons appointed as child custody investigators under Family Code section 3110 or Evidence Code section 730, and persons who are professional staff or trainees in a child custody or visitation evaluation or investigation, must complete basic training in domestic violence issues as described in Family Code section 1816 and, in addition:

(1)Advanced training

Sixteen hours of advanced training must be completed within a 12-month period. The training must include the following:

(A)Twelve hours of instruction, as approved by the Administrative Office of the Courts, in:

(i)The appropriate structuring of the child custody evaluation process, including, but not limited to, maximizing safety for clients, evaluators, and court personnel; maintaining objectivity; providing and gathering balanced information from both parties and controlling for bias; providing for separate sessions at separate times (as specified in Family Code section 3113); and considering the impact of the evaluation report and recommendations with particular attention to the dynamics of domestic violence;

(ii)The relevant sections of local, state, and federal law or rules;

(iii)The range, availability, and applicability of domestic violence resources available to victims, including, but not limited to, battered women's shelters, specialized counseling, drug and alcohol counseling, legal advocacy, job training, parenting classes, battered immigrant victims, and welfare exceptions for domestic violence victims;

(iv)The range, availability, and applicability of domestic violence intervention available to perpetrators, including, but not limited to, arrest, incarceration, probation, applicable Penal Code sections (including Penal Code section 1203.097, which describes certified treatment programs for batterers), drug and alcohol counseling, legal advocacy, job training, and parenting classes; and

(v)The unique issues in family and psychological assessment in domestic violence cases, including the following concepts:

a. The effects of exposure to domestic violence and psychological trauma on children; the relationship between child physical abuse, child sexual abuse, and domestic violence; the differential family dynamics related to parent-child attachments in families with domestic violence; intergenerational transmission of familial violence; and manifestations of post-traumatic stress disorders in children;

b. The nature and extent of domestic violence, and the relationship of gender, class, race, culture, and sexual orientation to domestic violence;

c. Current legal, psychosocial, public policy, and mental health research related to the dynamics of family violence, the impact of victimization, the psychology of perpetration, and the dynamics of power and control in battering relationships;

d. The assessment of family history based on the type, severity, and frequency of violence;

e. The impact on parenting abilities of being a victim or perpetrator of domestic violence;

f. The uses and limitations of psychological testing and psychiatric diagnosis in assessing parenting abilities in domestic violence cases;

g. The influence of alcohol and drug use and abuse on the incidence of domestic violence;

h. Understanding the dynamics of high-conflict relationships and abuser/victim relationships;

i. The importance of, and procedures for, obtaining collateral information from probation departments, children's protective services, police incident reports, restraining order pleadings, medical records, schools, and other relevant sources;

j. Accepted methods for structuring safe and enforceable child custody and parenting plans that assure the health, safety, welfare, and best interest of the child, and safeguards for the parties; and

k. The importance of discouraging participants in child custody matters from blaming victims of domestic violence for the violence and from minimizing allegations of domestic violence, child abuse, or abuse against any family member.

(B)Four hours of community resource networking intended to acquaint the evaluator with domestic violence resources in the geographical communities where the families being evaluated may reside.

(2)Annual update training

Four hours of update training are required each year after the year in which the advanced training is completed. These four hours must consist of instruction focused on, but not limited to, an update of changes or modifications in local court practices, case law, and state and federal legislation related to domestic violence, and an update of current social science research and theory, particularly in regard to the impact on children of exposure to domestic violence.

(Subd (d) amended effective January 1, 2005; previously amended effective January 1, 2002, January 1, 2003, and January 1, 2004.)

(e) Education and training providers

Only education and training acquired from eligible providers meets the requirements of this rule. "Eligible providers" includes the Administrative Office of the Courts and may include educational institutions, professional associations, professional continuing education groups, public or private for-profit or not-for-profit groups, and court-connected groups.

(1)Eligible providers must:

(A)Ensure that the training instructors or consultants delivering the education and training programs either meet the requirements of this rule or are experts in the subject matter;

(B)Monitor and evaluate the quality of courses, curricula, training, instructors, and consultants;

(C)Emphasize the importance of focusing child custody evaluations on the health, safety, welfare, and best interest of the child;

(D)Develop a procedure to verify that participants complete the education and training program; and

(E)Distribute a certificate of completion to each person who has completed the training. The certificate must document the number of hours of training offered, the number of hours the person completed, the dates of the training, and the name of the training provider.

(2)Effective July 1, 2005, all education and training programs must be approved by the Administrative Office of the Courts.

(Subd (e) amended effective January 1, 2005.)

(f) Local court rules

Each local court may adopt rules regarding the procedures by which child custody evaluators who have completed the training in domestic violence as mandated by this rule will notify the local court. In the absence of such a local rule of court, child custody evaluators must attach copies of their certificates of completion of the initial 12 hours of advanced instruction and of the most recent annual 4-hour update training in domestic violence to each child custody evaluation report.

(Subd (f) relettered effective January 1, 2005; adopted as subd (g); amended effective January 1, 2003, and January 1, 2004.)

(g) Previous training accepted

Persons attending training programs offered after January 1, 1996, that meet all of the requirements set forth in subdivision (d)(1)(A) of this rule are deemed to have met the minimum standards set forth in subdivision (d)(1)(A) of this rule, but they must still meet the minimum standards listed in subdivisions (d)(1)(B) and (d)(2) of this rule.

(Subd (g) amended effective January 1, 2007; adopted as subd (h); relettered effective January 1, 2005.)

Rule 5.230 amended effective January 1, 2007; adopted as rule 1257.7 effective January 1, 1999; amended and renumbered effective January 1, 2003; previously amended effective January 1, 2003, January 1, 2004, and January 1, 2005.

> > Return to Top


Return Home