BILL ANALYSIS
SB 1088
Page 1
Date of Hearing: June 21, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1088 (Bowen) - As Amended: June 15, 2005
SENATE VOTE : 29-8
SUBJECT: Family Law: Ex Parte Communications
KEY ISSUE : IN ORDER TO PROTECT AGAINST INAPPROPRIATE
COMMUNICATION, SHOULD EX PARTE COMMUNICATIONS IN FAMILY COURT
between attorneys and evaluators or mediators, and between the
court and evaluators or mediators BE PROHIBITED, SUBJECT TO
SPECIFIED EXEMPTIONS?
SYNOPSIS
This bill would prohibit ex parte communications in family court
proceedings between the court, the attorneys for the parties,
the child's attorney, and mediators and evaluators, subject to
specified exceptions. Exceptions include cases involving
domestic violence or when necessary to prevent harm to a child
or party. This bill would direct the Judicial Council, by July
1, 2006, to adopt a rule to implement the above requirements.
The author argues this bill is necessary to ensure all parties
have the opportunity to fully participate in family law
decisions, and that no party is shut out of the process. This
bill is supported by women's and children's organizations and
the Family Law Section of the State Bar. There is no
opposition.
SUMMARY : Requires Judicial Council to adopt a rule limiting ex
parte communication in family court. Specifically, this bill :
1)In the absence of a stipulation by the parties, prohibits ex
parte communications in family law proceedings between
attorneys for any party and any court-appointed or
court-connected evaluator or mediator, or between any
court-appointed or court-connected evaluator or mediator and
the court, except with regard to scheduling appointments.
2)Prohibits ex parte communications between a child's counsel,
appointed by the court, and any court-appointed or
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court-connected evaluator or mediator, except where expressly
authorized by the court or as authorized to allow the child's
counsel to interview mediators.
3)Allows for ex parte communications to address cases involving
allegations of domestic violence and as needed to inform the
court that a restraining order is necessary to prevent
imminent risk of physical safety to the child or party. Does
not limit the duty of a mediator or evaluator to report child
abuse or neglect as a mandated reporter or their duty to warn
of serious threat of harm, as specified.
4)Directs the Judicial Council to adopt a rule to implement the
above requirements by July 1, 2006.
EXISTING LAW :
1)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.)
2)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;
Rule of Court 5.215.)
3)Provides that counsel appointed to represent the child's best
interests may interview mediators. (Family Code Section
3151.)
4)Provides that a child custody evaluator may observe
parent-child interactions and interview the parents together
or separately. (Rule of Court 5.220.)
5)Requires psychotherapists to warn and protect from a patient's
threatened violent behavior where the patient has communicated
a serious threat of physical violence as specified. (Civil
Code Section 43.92.)
6)Requires specified individuals, known as mandated reporters,
to report to law enforcement suspected child abuse of neglect.
(Penal Code Section 11164 et seq .)
FISCAL EFFECT : This bill as currently in print is keyed
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fiscal.
COMMENTS : In family court proceedings, when child custody or
visitation is contested, mediators or custody evaluators often
help resolve disputes and make recommendations regarding custody
and visitation. Their recommendations carry significant weight
with the court when it determines custody and visitation
arrangements. Currently, there is neither a general prohibition
nor a general authorization of ex parte communications in the
family court; and, according to supporters of the bill, ex parte
communications occur frequently. This bill seeks to limit ex
parte communications involving mediators and evaluators.
The author argues that such communication should be
appropriately limited because:
Often in a child custody case, there is communication
between the judge and the mediator or evaluator, or
between a mediator or evaluator and one party but the
other party isn't made aware of the communication or
of the information provided. As a result, important
decisions about the case, including child custody
determinations, are made behind closed doors without
any opportunity for the other party to present their
side of the story.
In other types of court proceedings, ex-parte
communication is prohibited. Family court shouldn't
be an exception.
Supporters, including women's and children's groups and the
Family Law Section of the State Bar, echo the author's
arguments. Writes the National Center for Youth Law:
It is not uncommon in family law cases for ex parte
communications to occur between judges and evaluators
or mediators, or attorneys or parties and evaluators
or mediators about important aspects of the case.
This means that information may be conveyed without
both parties having an opportunity to present
information on the issue thereby putting one party or
the other at a disadvantage. In child custody cases
this may mean that all information pertaining to the
best interests of the child may not be considered or
presented information may go inappropriately
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unchallenged. Also, many parties in family court are
not represented by attorneys making the opportunity
to privately influence the recommendations of
evaluators or mediators more likely. Parents should
have the confidence that important decisions about
their children will not be made without their full
opportunity for participation in the process.
This bill would, absent stipulation by the parties, prohibit ex
parte communications between attorneys and evaluators or
mediators, and between the court and evaluators or mediators,
subject to specified exceptions. Under the bill, 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. In addition, the
scheduling of appointments is exempted from the ex parte
communication prohibition. This bill would also 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.
This bill would also allow ex parte communications for cases
involving domestic violence and when necessary to prevent risk
of harm to a child or party. The first 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. This
bill would also provide an exception when a mediator or
evaluator determines that ex parte communication is needed to
inform the court that a restraining order is necessary to
prevent an imminent risk to the physical safety of a child or
party. Finally this bill would specifically not limit the duty
of a mediator or evaluator to report as a mandated reporter or
to warn of a serious threat of harm.
Los Angeles, Sacramento and several other counties have adopted
local rules that prohibit ex parte communications similar to
this legislation. According to the Judicial Council, such rules
have proved workable and have prevented inappropriate ex parte
communications.
In order to ensure the prohibition against ex parte
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communication is carefully crafted, this bill directs the
Judicial Council, by July 1, 2006, to adopt a rule to implement
the requirements of this bill. The Judicial Council rulemaking
process will provide an opportunity for fine-tuning all the
details involved with the prohibition against ex parte
communication. This will include the opportunity to develop,
with greater specificity, the circumstances and limitations when
the court may expressly authorize ex parte communications
between a child's counsel and evaluators or mediators as
provided in the bill, as well as when to assess whether there is
an imminent risk to a child sufficient to fit within the
exception provided in the bill. The rulemaking process will not
only allow for public comment, but will allow for a higher level
of detail than is generally possible through legislation.
Technical Amendment : The bill, as amended, incorrectly
references a nonexistent Family Code section. In order to
reference the appropriate code section, the bill should be
amended as follows:
On page 3, line 9, after "43.92" insert:
of the Civil Code
REGISTERED SUPPORT / OPPOSITION :
Support
California Commission on the Status of Women
California National Organization for Women
Prevent Child Abuse California
National Center for Youth Law
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334