Family Legal Ease - Family Law and LGBT Legal Services

Revisions Effective January 1, 2012

Local Rules of Court

DIVISION V

FAMILY LAW

Chapter 10

Rule 5.10.1

Child Custody Recommending Counseling Required

Before a hearing on any disputed issue of custody or visitation, the parties are required to attend and participate in child custody recommending counseling either with a counselor at FCS of the Superior Court or with a private mediator/child custody recommending counselor at the parties’ own expense. The locations and telephone numbers of FCS are online. The purpose of visitation/child custody recommending counseling at FCS or private mediation/child custody recommending counseling is 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. (Rev. 1/1/2011; Rev. 1/1/2012)

Rule 5.10.2

Non-Confidentiality; Recommendation

Unless otherwise stipulated by the parties or ordered by the court, FCS child custody recommending counseling and private mediation/child custody recommending counseling in San Diego County is understood to be a non-confidential process which means that the information provided to the counselor is not confidential. If the parties do not reach an agreement, the counselor will submit a recommendation to the court. (Adopted 1/1/2005; Renum. 1/1/2006; Rev. 1/1/2008; Renum. & Rev. 1/1/2011; Rev. 1/1/2012)

Rule 5.10.3

FCS Child Recommending Counseling

A. Child Custody Recommending Counseling at FCS Disputed custody or visitation matters must have a child custody recommending counseling appointment at FCS except in cases where the parties stipulate to private mediation/child custody recommending counseling. Absent a showing of good cause, the court will not set a new FCS appointment until at least six months have passed since the last such FCS date. Parties may appear before the court ex parte to make such a request.

B. Initiating FCS Counseling; Orders Pending Counseling

1. The moving party must file a completed Family Court Services Screening Form (SDSC FCS-46) with the moving papers if custody/visitation is at issue. At that time, both a hearing date and an FCS appointment date will be set and noted on the moving papers. The moving party/attorney shall notify the opposing party/attorney in writing of the date of the FCS appointment as soon as possible but no later than 16 court days before the counseling session plus 5 calendar days if notice is sent by mail.

2. If unanticipated child custody/visitation issues are raised for the first time at any hearing, the court may make a temporary custody/visitation order and may order the parties to participate in an FCS counseling session. The parties must meet with an FCS counselor before the court will make final custody/visitation orders on disputed custody/visitation issues.

C. Resolution; Cancellation, Rescheduling; Sanctions.

1. Resolution. Parties are encouraged to try to resolve child custody/visitation disputes before the FCS appointment. If the disputed custody/visitation issue is resolved prior to the FCS date, the moving party or their attorney must promptly notify the other party or their attorney and call FCS to cancel the appointment or risk a monetary sanction being imposed on one or both of the parties.

2. Cancellation.

a. Parties may cancel FCS appointment if the custody/visitation issue is dismissed or the parties choose to participate in private mediation/child custody recommending counseling prior to the FCS date. The requesting party must notify FCS of the cancellation at least 2 court days prior to the FCS appointment date.

b. If the moving party has been unable to timely serve notice of the FCS appointment on the other party, the moving party must cancel the FCS appointment at least 2 court days prior to the FCS date.

3. Rescheduling. Parties may reschedule the FCS appointment one time by stipulation by notifying FCS at least 2 court days prior to the FCS date. All subsequent requests to reschedule an FCS appointment require a court order, a copy of which must be provided to FCS by the requesting party or their attorney.

4. Sanctions. Failure to cancel or reschedule an FCS appointment at least 2 court days before the FCS appointment or failure to attend and participate in the FCS counseling session may subject the offending party to monetary sanctions of up to $1,500 pursuant to Code of Civil Procedure section 177.5.

D. FCS Data Sheet

1. At or before the FCS appointment, each party must submit a completed FCS Data Sheet (form SDCS FCS-02) to the FCS office. No attachments are permitted to the FCS Data Sheet.

2. Parties appearing by telephone for an FCS appointment must mail a completed FCS Data Sheet to the FCS office at least 5 calendar days before the FCS appointment date.

E. Materials for FCS Review

1. No writings or other materials may be submitted to FCS for the counselor’s review absent court order.

2. Documents Requested by FCS. FCS may request the parties to submit documents for consideration. Copies of the documents must be provided to the other party/attorney concurrently with the submission to FCS.

F. Attendance at FCS Counseling. Other than a statutorily authorized support person, only the parties may attend the counseling session. The attorneys do not participate in the FCS counseling session. If the counselor wants to interview the child or other person(s), the counselor will arrange for such interviews.

G. Telephone Conference. If an in-person meeting with a counselor at FCS is not feasible, such as when one party resides outside the County of San Diego, the FCS session will be conducted by telephone with that party. The party appearing by telephone must call FCS to obtain an FCS Data Sheet or access it online for submission to FCS in accordance with subsection D above. The party appearing by telephone shall call FCS at the time designated for the FCS appointment.

H. Agreements. If the parties reach an agreement during the FCS session and both parties are selfrepresented, the counselor may prepare a written agreement that will be approved and signed by the parties and filed with the court. If the parties reach an agreement and either of the parties is represented by an attorney, the represented party will have the opportunity to have his or her attorney review the agreement before signing it and having it filed with the court.

I. Unresolved Issues. If the parties are unable to resolve issues of custody or visitation, the FCS counselor will submit a written recommendation to the parties, their attorneys and the court before the custody hearing. If the FCS recommendation is not available at least 10 calendar days before the hearing, the court will generally grant a continuance upon a party’s request.

J. Cross Examination of FCS Counselor. A party has the right to cross-examine the FCS counselor at trial or at a special set hearing. FCS counselors are employees of the Superior Court. A party desiring the testimony of a FCS counselor at trial or special set hearing should first contact FCS to determine availability on the desired date. A subpoena must then be served on FCS at least 10 days in advance of the hearing with fees deposited as required by Government Code sections 68097, 68097.1, and 68097.2. If, at the time of trial or hearing, the FCS counselor is no longer an employee of Superior Court, is on leave, or other circumstances prevent the Superior Court from producing the counselor as a witness in response to a subpoena, FCS will assign the case for another child custody recommending counseling session with a different counselor. The court will not authorize depositions of counselors absent a showing of extraordinary good cause, such as prolonged unavailability of the counselor on or about the time of trial. Certain privileges attach to FCS files. Judicial officers will not order the release of any FCS documents without a prior in-camera review. A party desiring an in-camera review shall serve a subpoena duces tecum upon FCS for the file/documents at least 15 days before the trial or special set hearing, and if an objection is received, must schedule a motion to compel or Order to Show Cause to obtain the in camera review.

K. Communication with FCS. Communications between FCS counselors, parties, attorneys, including minors' counsel, are governed by Family Code sections 216 and 1818.

L. Request for Change of FCS Counselor.

1. Perceived Bias. Should a party believe that a particular counselor is biased in a way that affects the fair and equal treatment, the party may bring this matter to the attention of the Manager of FCS for consideration of this perception and assignment to a different counselor.

2. Procedure. A peremptory challenge of a counselor is not allowed. However, a party may request a change of counselor by following these rules.

a. During Counseling. A party must request a change of counselor as soon as sufficient basis for a change is known. No request to change a counselor will be granted unless there is a demonstrable showing of bias or prejudice against one of the parties or their attorney such that an independent, fair, and impartial recommendation cannot be made to the court.

b. Subsequent Court Proceedings. If either party files a subsequent court proceeding requiring an FCS appointment, either party may, at the time of the assignment, request a different counselor, without a showing of good cause. (Adopted 1/1/2005; Rev. & Renum. 1/1/2006; Rev. 1/1/2007; Rev. & Renum. 1/1/2008; Rev. 1/1/2009; Rev. 1/1/2010; Renum. & Rev. 1/1/2011; Rev. 1/1/2012)