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Saturday, August 30, 2014
Rule 6: Family Law


RULE 6. FAMILY LAW

6.1GENERAL INFORMATION

These Rules apply to all matters related to the Family Law Act, the Uniform Parentage Act, the Domestic Violence Prevention Act, and the Uniform Child Custody Jurisdiction Act. (Eff. 01/01/09)

6.2MEDIATION

Parents who are not in agreement regarding custody and visitation in the matter before the Court will be required to attend mediation in an effort to resolve the dispute. Generally, this will happen before any Court orders are made; the Court may make temporary orders where necessary, pending further order of the Court to be made at a scheduled hearing. The purpose of mediation is to develop a custody and time-sharing agreement which is in the child(ren)’s best interest.

(a) Who May Attend Mediation. Generally, the only persons in attendance at a mediation session are the two parents and the mediator. However, the mediator has discretion to allow other person(s) to participate in the mediation process. When visitation issues arise between persons other than the parents (such as grandparents or step-parents), the persons attending mediation shall be determined by the mediator.

(b) Conduct of Mediation. Mediation proceedings shall beheld in private and are confidential. All verbal communications from the parties to the mediator shall be deemed to be confidential information, not to be discussed unless such information impacts issues of safety to the parties or the children.

(c) Ex Parte Communications. The mediator will not initiate ex parte communication with the Judge regarding a particular case except where there are questions regarding procedure in that case. If the mediator finds it necessary to discuss substantive issues with the Judge, the mediator shall so inform each of the parties of the communication. (Eff. 01/01/09)

6.3CONTESTED CASES

Following mediation, if there are still unresolved issues regarding custody and visitation, the Court may schedule a hearing. The Court may order a custody evaluation before hearing the case. Following a hearing, the Court may make temporary orders pending the completion of a custody evaluation. . The parties will be ordered to pay for the cost of the custody evaluation.

The Court may close the courtroom to allow only parties and necessary persons in certain custody and visitation proceedings where it would not be in the best interest of the children to have their issues heard in public. (Eff. 01/01/09)

6.4CUSTODY EVALUATION

If a custody evaluation is ordered by the Court, the Clerk will inform Family Court Services for assignment of a child custody evaluator. The parties or their attorneys will be informed of the assignment of the evaluator by written notice.

(a) Challenge of Evaluator. If a person wishes to change the assignment of the child custody evaluator, he/she should do so by contacting the head of the Family Court Services Department who will make a determination regarding the request. If such a request for a change of evaluator is made, the request must be made within 10 calendar days of receiving the notice of assignment of evaluator from the Family Court Services Department.

(b) Evaluation Process. The child custody evaluator will contact the parties directly to request information to begin the process. The parties will respond promptly; any delay in response may create delays in completing the evaluation and thus delay resolution of the custody dispute.

(c) Ex Parte Communications. The child custody evaluator will not conduct ex parte communication with the Judge regarding a particular case except where there are questions regarding procedure in that case. If any substantive issues are discussed with the Judge, the evaluator shall so inform each of the parties of the communication.

(d) Evaluation Report. A Court date will be set to receive the report of the child custody evaluator. The report will be sent to the Court, the parties, and their attorneys prior to that date. The parties may stipulate to accept the recommendations of the child custody evaluator, or the Court may set the matter for a contested hearing.

(e) Payment for Custody Evaluation. Both parties will be referred to the County Treasurer’s office to set up payment arrangements for the custody evaluation. The court will periodically review the costs incurred in performing the custody evaluation and will set the custody evaluation fee accordingly. If a party should fail to set up payment arrangements, or should fail to make periodic payments for the custody evaluation, then the custody evaluator may unilaterally cancel the custody evaluation. In such event, the custody hearing may go forward without the custody evaluation, and the court may take into consideration a party’s non-compliance with the payment arrangements. (Eff. 01/01/09)

6.5CHILD AND SPOUSAL SUPPORT / INCOME AND EXPENSE DECLARATION

Within 30 days of the hearing or trial, a current Income and Expense Declaration must be filed by each party where support is at issue. If current facts are temporary, both the actual current facts and estimated prospective facts may be shows if properly identified. If attorney’s fees and/or costs are requested, the paragraph pertaining to attorney’s fees must be completed.

Wage earners must attach legible copies of their paycheck stubs for the most recent two months. In the event no paycheck stubs are available, other appropriate documentation must be attached. (Eff. 01/01/09)

6.6TAX RETURN

The parties may be asked to provide legible copies of their last three state and federal income tax returns, including all attachments. Self-employed parties shall bring their most recent profit and loss statements, balance sheets, quarterly sales tax reports, the last filed tax return, or similar documentation evidencing income from all sources. (Eff. 01/01/09)

6.7SUPPORT MODIFICATIONS

Every motion to modify support shall set forth the date of the prior order and the amount of the prior order.

At a hearing on modification of spousal support, the supported spouse shall be prepared to give evidence of his or her compliance with Family Code by demonstrating progress toward becoming self-sufficient. (Eff. 01/01/09)

6.8FAMILY LAW FACILITATOR / DUTIES OF FACILITATOR

The Family Law Facilitator shall provide those services set forth in Family Code § 10004. (Eff. 01/01/09)

6.9LAW AND MOTION

Unless otherwise assigned by the Clerk, Law and Motion hearings, where parties are represented by counsel, are held on the second and fourth Friday of the month at 10 a.m. or Wednesday at 1:30 p.m.

The papers of the moving party shall be filed and served at least 21 days prior to the time of the hearing. Proof of service shall be filed prior to the date of the hearing. (Eff. 01/01/09)

6.10ORDER SHORTENING TIME

An order shortening time for service of the notice of a hearing will not be granted if the request for that order is not accompanied by a supporting declaration under penalty of perjury which states the need for that order. (Eff. 01/01/09)

6.11FAMILY LAW COMMISSIONER

The Family Law Commissioner shall hear all Title IV-D support cases, support enforcement, and other family law matters as assigned. These cases will be heard on the second and fourth Friday at 1:30 p.m. (Eff. 01/01/09)

6.12RESPONSIVE PLEADINGS

Unless an order shortening time has been issued, responsive papers shall be served and filed at least 10 days prior to the date of the hearing. (Eff. 01/01/09)

6.13HEARINGS

The attorneys and parties shall be present in Court when their case is called for hearing unless they have previously checked in with the Court clerk and requested the matter be passed for settlement discussion outside the Courtroom.

Failure of the moving attorney or moving self-represented party to be present at the hearing or to inform the Courtroom Clerk of his or her presence shall result in the matter being removed from the calendar. If the responding party has appeared, but the moving party has not, attorney’s fees and costs may be awarded to the appearing party. In the event the responding party fails to appear, the Court may continue the matter and award attorney’s fees or enter an order on the pleadings and/or the testimony of the moving party.

If the attorney or client is unable to be present at the time of the hearing, the Court and opposing party shall be notified immediately by telephone of the reasons for and extent of the delay. (Eff. 01/01/09)

6.14EX PARTE ORDERS

(a) The moving attorney or moving self-represented party must give notice of any ex parte applications to the opposing attorney or self-represented party in accordance with California Rules of Court § 379; “notice shall be given no later than 10:00 A.M. on the Court day before the ex parte appearance, absent a showing of exceptional circumstances.” A Declaration re: Notice of Ex Parte Application for Orders shall be filed with the Court prior to, or at the time of, the hearing.

(b) An ex parte order for exclusive use of a vehicle will not be granted unless the Declaration demonstrates that the opposing party has suitable transportation available, or requires no such transportation, or other good cause for such an order.

(c) An ex parte order removing a party from a residence will not be issued without supporting declarations as required by law. (Eff. 01/01/09)

6.15ORDERS AFTER HEARING

Counsel should come to a hearing with a written Order After Hearing (OAH), prepared to present it to the Court at the conclusion of the hearing. If the Court makes decisions that require the further drafting of the OAH, the Court shall designate one counsel to prepare the written OAH. This draft OAH should be submitted to opposing counsel for approval as to form and forwarded to the Court. Faxed OAH’s are acceptable. All OAH’s must be submitted to the Court within 14 days following the hearing; failure to do so may result in the imposition of sanctions. If opposing counsel does not respond to the request for approval as to form within five days, the proposed OAH may be submitted directly the Court with an attached declaration indicating counsel’s attempts at notifying opposing counsel. (Eff. 01/01/09)

6.16DEFAULT OR UNCONTESTED JUDGMENTS

(a) Judgment by Default / Notice and Acknowledgment of Receipt. Unless the Court orders otherwise, a default will not be entered based on a Notice of Acknowledgment of Receipt signed by a person other than the party to whom it is directed.

(b) Child Support, Spousal Support or Attorney’s Fees Awards. No award of child support, spousal support or attorney’s fees will be granted unless there is either an attached written agreement between the parties settling those issues or there is sufficient information on which the Court may base an order, including a fully completed and executed Income and Expense Declaration (with information on both parties where available.

(c) Community and/or Separate Property. No division of community property (assets or debts) or confirmation of separate property will be ordered unless there is either an attached written agreement between the parties settling those issues, or there is a completed Property Declaration attached to and served with the Request to Enter Default.

(d) Visitation. Where the judgment is taken by default, if there is no attached written agreement of parties concerning custody and visitation, and either supervised visitation or a denial of visitation is requested, an attached factual Declaration under penalty of perjury shall be submitted with the judgment and shall set forth the following:

(1) Where the party is seeking to deny visitation between the child(ren) and the defaulting party: The specific reasons visitation should be denied; the last time there was visitation between the child(ren) and the defaulting party; and whether the whereabouts of the defaulting party is known, and, if so, his or her address.

(2) Where the party is seeking supervised visitation between the child(ren) and the defaulting party: The reasons such visitation should occur; the person or agency to do the supervision; and how the supervision is to be paid for.

(3) Other information: The declaration shall inform the Court when the parties separated, who has been the primary caretaker of the child(ren) during the last 6 months and the extent of contact between the child(ren) and the non-caretaker parent during that time.

The declaration shall be mailed to the defaulting party with the Request to Enter Default, and proof of mailing shall be filed with the Court. (Eff. 01/01/09)

6.17SUBMISSION OF AGREEMENTS

If the parties have reached an agreement resolving all issues in the case, either party may present the signed written agreement to the Court (Eff. 01/01/09)

6.18TRIAL

(a) Settlement Conference. All contested dissolutions will be set for a settlement conference. The parties and the attorneys shall attend the conference.

(b) Settlement Conference Statement / Time Requirements. At least 10 days before the settlement conference, or 15 days if service is by mail, each party or their attorney shall prepare, file and serve on the other party or the opposing attorney, a Settlement Conference Statement with contents as indicated below.

Caption. The caption shall contain the times and dates of the settlement conference and the Trial.

Income and Expense Declaration. A current signed and dated Income and Expense Declaration shall be prepared on the Judicial Council form. Copies of current pay stubs or other income verification shall be attached.

Community Property (assets and liabilities). A current signed and dated Schedule of Assets and Debts shall be prepared on Judicial Council forms. The Settlement Conference Statement shall indicate the claimed values of the assets and the proposal for division. The Statement should also include a proposed division of the community property debts.

Separate Property. Where one party claims that an asset is his or her separate property, and if the other party has not stipulated to that fact, the Statement should include a description of the assets, the date of acquisition, the encumbrance at the time of acquisition, the present encumbrance and a statement as to how the title is held.

Support. Each party shall set forth specific proposals regarding child and/or spousal support.

Statement of Facts and Legal Arguments. On any contested legal issue, the Statement should include a recitation of the relevant facts and a brief discussion of the relevant law. (Eff. 01/01/09)

6.19CONDUCT OF TRIAL

The trial will be conducted in accordance with rules and procedures for all other civil trials. (Eff. 01/01/09)

 


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