BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1088 S
Senator Bowen B
As Amended April 25, 2005
Hearing Date: May 3, 2005 1
Family Code 0
MJM:rm 8
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SUBJECT
Family Law: Ex Parte Communications
DESCRIPTION
This bill would prohibit ex parte communications in family
court proceedings between the court, the parties, the
attorneys of the parties, the child's attorney, and
mediators and evaluators, subject to certain exceptions.
BACKGROUND
In family court proceedings, when child custody is
contested, mediators or custody evaluators are often
involved to help resolve the dispute and make
recommendations regarding custody. Their recommendations,
as expected, carry significant weight with the court when
it determines custody and visitation arrangements.
Current law does not provide a general prohibition or
authorization of ex parte communications, but it does
require ex parte communications in certain situations
between specified participants in the custody proceedings.
For example, at the discretion of the court, ex parte
conferences are permitted between the court and the parties
and their attorneys. Ex parte communications are expressly
permitted between mediators and evaluators and the parties
when there are allegations of domestic violence, to ensure
the mediator or evaluator has access to the most accurate
information and to protect parties and children. Mediators
(more)
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and evaluators are expressly allowed to interview parties
and children to arrive at their recommendations. There is
no express prohibition or authorization of ex parte
communications between mediators or evaluators and the
court, but according to supporters of this bill, those ex
parte communications occur frequently.
Los Angeles County has already implemented strict rules
regulating ex parte communications between the court, the
parties, child's counsel, and mediators or evaluators.
CHANGES TO EXISTING LAW
1. Existing law provides that ex parte conferences may be
conducted between the court and parties in a family law
proceeding at the discretion of the court. [Family Code
Section 1818.]
This bill would restrict ex parte communications in
family law proceedings between parties, counsel to
parties, child's counsel, the court, and mediators or
evaluators unless the parties stipulated otherwise.
2. Existing law provides that ex parte communications are
permitted between mediators or evaluators and parties in
situations involving domestic violence. [Family Code
Sections 3113, 3181, and 3192.]
Existing law provides that counsel appointed to represent
the child's best interests may interview mediators.
[Family Code Section 3151.]
Existing law provides that a child custody evaluator may
observe parent-child interactions and interview the
parents together or separately. [Court Rule 5.220.]
This bill would allow for ex parte communications as
provided in current law and as required to prevent
imminent risk to the child.
COMMENT
1. Need for the bill
According to one sponsor:
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It is standard practice in many counties for family
court judges to talk about a case privately with
evaluators and mediators assigned to the case without
the knowledge of all the parties involved. It is also
common for a party's attorney to have private
conversations with the evaluator or mediator. As a
result, important decisions about a case, including
child custody determinations, are often made behind
closed doors without the opportunity for the excluded
party to present his or her side of the story. In
other types of court proceedings, ex parte contacts
are prohibited. Family court should not be an
exception.
The author asserts that ex parte communications in family
court are not only inappropriate but also arguably
constitute a violation of due process.
To address this concern, but still allow for the
flexibility for mediators and evaluators, as well as
child's counsel, to do their jobs effectively, this bill
would:
1. prohibit ex parte communication between attorneys
for parties and court-appointed mediators or
evaluators;
2. prohibit ex parte communications between
court-appointed mediators or evaluators and the court;
3. prohibit a party or a party's attorney from initiating
oral communications about the merits of a case with a
mediator or evaluator without notifying the other
parties and attorneys;
4. prohibit an attorney or party from providing written
documentation to an
evaluator or mediator without providing a copy of
the document to the other party and child's counsel;
and
5. prohibit ex parte communication between child's
counsel and court-appointed mediators or evaluators
except where it is expressly authorized by the court
or pursuant to child's counsel's right to interview
mediators in Section 3151(c)(5).
The prohibitions in the bill would not apply if the
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parties stipulated otherwise.
Thus, the heart of the bill involves two prohibitions:
no ex parte communications between the court and
evaluators or mediators and no ex parte communications
between attorneys and evaluators or mediators.
Mediators and evaluators would not be able to engage in
ex parte communications with the attorneys of the
parties, but would be able to meet with the parties
themselves. The bill would allow parties or attorneys to
initiate ex parte conversations with the mediator or
evaluator, but only after notice was provided to the
other party or attorney. However, because a mediator or
evaluator needs access to the parties to do their jobs
effectively, this bill would allow the mediator or
evaluator to initiate contact with one of the parties
without notice to the other party. This bill would
generally prohibit the child's counsel from engaging in
ex parte communications with mediators or evaluators,
unless the court expressly authorized the communications
or it was done pursuant to child's counsel statutory
obligation to interview mediators.
2. Exceptions for domestic violence situations
Recognizing the special needs of family law proceedings,
this bill would provide two broad exceptions to its
general prohibition on ex parte communications. One
exception would allow a mediator or evaluator to address
a case involving allegations of domestic violence. This
exception conforms to current law, recognizing that
separate interviews are necessary to ensure the safety of
the victim and to obtain accurate information. To
clarify that this bill would recognize existing law
requiring ex parte communications between mediators,
investigators and counselors in domestic violence
situations, the following amendment is recommended:
On page 2, after line 36, insert:
(2)As set forth in sections 3113, 3181, and 3192.
On page 3, line 1, delete "(2)" and insert: (3)
3. Exceptions for imminent risk to child's safety or
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well-being
This bill would also provide an exception when a mediator
or evaluator determines ex parte communications are
necessary to prevent an imminent risk of harm to the
child's safety or well-being. The following amendment is
suggested to allow a mediator or evaluator to engage in
ex parte communications to prevent an imminent risk to a
child's or a party's safety or well-being.
On page 3, line 3, after "child's" insert:
or party's
4. Suggested amendment to Family Code Section 1818
Section 1818 currently allows for ex parte communications
between the court and the parties or attorneys at the
discretion of the court. This bill does not expressly
prohibit ex parte communications between a party and the
court. Is it the intent of this bill to prohibit contact
between a party and the court? If so, shouldn't Section
1818 be amended as well?
5. Suggested amendment to require Judicial Council to
develop rule and the appropriate exceptions
This bill originally would have required Judicial Council
to adopt rules regarding ex parte communications. As
such, the statute was drafted to set out the general
prohibition and identify appropriate exceptions. It was
expected that the details and procedures would be
fine-tuned in the rulemaking process, including public
comment. However, to avoid fiscal bill deadlines, the
bill was amended to eliminate the rule requirement.
Accordingly, the fine-tuning that would have been done by
Judicial Council in the rulemaking process now needs to
be done in the bill itself. For example, under what
circumstances and with what limitations may the court
expressly authorize ex parte communications between
child's counsel and evaluators or mediators as allowed in
subsection (b)? How is a mediator or evaluator to assess
whether there is an imminent risk to a child sufficient
to fit within the exception provided in subsection
(c)(2)?
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Judicial Council strongly recommends that this bill be
amended again to allow Judicial Council to develop rules
after input from all interested parties. Judicial
Council maintains that rules are more appropriate for
this subject because rules can provide more flexibility
and a higher level of detail than can a statute.
Concerns have been raised about ensuring that the rules
developed by Judicial Council would adequately represent
all interested players in this area. One suggestion to
alleviate those concerns is to assign a task force of
designated representatives to study the issue and
recommend a rule for adoption by the Judicial Council.
The author recognizes that if this bill is not amended to
require the drafting of rules for its implementation, the
bill will need to be developed further to flesh out the
nuances of the exceptions to the ex parte prohibition.
If the bill moves out of this committee, the author
intends to continue to develop the terms of the bill.
SHOULD INSTEAD THE BILL BE AMENDED TO REQUIRE THE
JUDICIAL COUNCIL TO ADOPT A RULE, UPON RECOMMENDATION
FROM A DESIGNATED TASK FORCE, PURSUANT TO PARAMETERS SET
BY THE LEGISLATURE?
Support: California Commission on the Status of Women;
California National Organization for Women; National
Center for Youth Law
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: None Known
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