BILL ANALYSIS
SB 1088
Page 1
SENATE THIRD READING
SB 1088 (Bowen)
As Amended June 28, 2005
Majority vote
SENATE VOTE :29-8
JUDICIARY 8-1 APPROPRIATIONS 15-2
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|Ayes:|Jones, Harman, Evans, |Ayes:|Chu, Sharon Runner, Bass, |
| |Laird, Leslie, Levine, | |Berg, Calderon, Karnette, |
| |Lieber, Montanez | |Klehs, Leno, Nakanishi, |
| | | |Nation, Oropeza, Laird, |
| | | |Saldana, Yee, Mullin |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Haynes |Nays:|Haynes, Walters |
| | | | |
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SUMMARY : Requires the Judicial Council (JC) to adopt a rule
limiting ex parte communication in family court. Specifically,
this bill :
1)Prohibits, in the absence of a stipulation by the parties, 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
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.
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4)Directs JC 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.
2)Provides that ex parte communications are permitted between
mediators or evaluators and parties in situations involving
domestic violence.
3)Provides that counsel appointed to represent the child's best
interests may interview mediators.
4)Provides that a child custody evaluator may observe
parent-child interactions and interview the parents together
or separately.
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.
6)Requires specified individuals, known as mandated reporters,
to report to law enforcement suspected child abuse of neglect.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis, minor absorbable costs to JC.
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
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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.
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 this 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
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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 JC, such rules have proved
workable and have prevented inappropriate ex parte
communications.
In order to ensure the prohibition against ex parte
communication is carefully crafted, this bill directs the JC, by
July 1, 2006, to adopt a rule to implement the requirements of
this bill. The JC 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 this 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0011725