Matters Assigned to the Family Law Department.General Rules
Rule 600. Matters Assigned to the Family Law Department.
All proceedings filed in the following matters are assigned to the family law department, to be governed by these family law rules:
(a)Matters arising from the Family Law Act, including cases where the district attorney appears on behalf of Santa Barbara County or any other party;
(b)Matters arising from the Uniform Divorce Recognition Act;
(c)Matters arising from the Uniform Child Custody Jurisdiction Act;
(d)Matters arising from the Uniform Parentage Act;
(e)Matters arising from the Domestic Violence Prevention Act;
(f)Matters arising from Code of Civil Procedure Sections 1650 through 1699 (RURESA);
(g)Orders to Show Cause, motions or trials in actions brought by the district attorney under the provisions of Articles 4 and 7 of the Welfare and Institutions Code;
(h)Matters arising from Civil Code Section 224 (adoptions);
(i)Matters arising from Civil Code Section 196 (support of adult children or parents);
(j)Post-dissolution judgment actions involving omitted or reserved property issues; and
(k)Non-marital property right actions consolidated with Family Law Act or Uniform Parentage Act proceedings.
(Adopted, effective 1/3/94)
Rule 601. Organization of Family Law Department.
In both South and North Santa Barbara County, a superior court judge (the "family law judge") shall be assigned to hear all pretrial family law matters.
(Adopted, effective 1/3/94)
Rule 602. Compliance With Rules--Sanctions.
Strict compliance with these family law rules is necessary to the expeditious resolution of family law matters and is therefore mandated for all participants. It is the court's policy to impose sanctions for the failure to adhere to these rules.
(Adopted, effective 1/3/94)
Family Law Ex Parte Matters
Rule 610. Policies.
610.1.Ex parte applications disfavored. Ex parte applications are strongly disfavored. Whenever possible, in lieu of an ex parte order, the court will issue orders shortening time and set the matter for full hearing at the regular family law and motion calendar. However, orders shortening time are also disfavored, and must be supported by a substantial showing of need.
610.2.Determination based on pleadings. It is the court's policy to determine ex parte orders based on the pleadings submitted. Thus, requests for ex parte orders normally will be determined without giving either party an opportunity for oral argument or discussion with the court.
(Adopted, effective 1/3/94)
Rule 611. Dates and Times for Hearings.
An ex parte hearing is required for all ex parte applications unless excused under Section 612.2. Dates and times for ex parte hearings are obtained by telephonic request to the staff of the family law judge. The hearing will be set at least 24 hours after the time the telephonic request is made. However, in domestic violence cases, the court, upon a showing of good cause, may grant leave for an earlier hearing. For all matters on which a hearing is not required, the application shall be submitted to the ex parte clerk for processing.
(Adopted, effective 1/3/94)
Rule 612. Notice.
612.1.Notice requirement. The moving party shall give notice to the responding party immediately upon obtaining a date and time for the ex parte hearing. Such notice shall be given at least twenty-four hours in advance of the hearing, during normal business hours, by telephone or personal delivery of written notice. The application and all moving papers shall be submitted to the ex parte clerk no less than four hours before the time set for the hearing and the appropriate fee paid on submission. Except as provided in Rule 612.2, notice shall be given for all ex parte applications, including those requesting orders shortening time and orders directing the parties to mediation.
612.2.Exceptions to notice requirement. The 24-hour notice may be excused upon establishing to the satisfaction of the court the following facts by declaration: (a) the giving of such notice would frustrate the very purpose of the order sought and lead the applicant to suffer immediate and irreparable injury; or (b) the giving of such notice is not possible, following a good faith attempt. A hearing is not required and notice need not be given for applications seeking: (a) to have an order or judgment signed, where the responding party has approved the same; (b) to have an order or judgment signed where a default proceeding was the basis upon which the order or judgment was made; (c) issuance of an Order to Show Cause (OSC) which does not request relief pending the hearing; (d) re-issuance of an OSC; (e) a wage assignment after issuance of a support order; (f) approval of an in forma pauperis fee waiver application; or (g) restoration of a former name after entry of judgment.
612.3.Contents of notice. The 24-hour notice must specify the date and time of the ex parte hearing and include a detailed description of the relief sought. If the responding party is not represented by counsel, the notice must further advise the party that he or she has a right to be present, to be represented by counsel, and to submit a written response to the application.
(Adopted, effective 1/3/94)
Rule 613. Service and Filing of Pleadings.
Prior to the ex parte hearing, both sides shall discuss and attempt to settle all issues and positions to be raised at the ex parte hearing. All required pleadings (including a copy of the proposed order) shall be hand delivered to the responding counsel (or unrepresented party) and filed with the ex parte clerk at least four business hours before the ex parte hearing. Responsive papers shall be delivered to the moving party and filed at the judge's chambers at or before the time of the hearing.
(Adopted, effective 1/3/94; amended 1/1/96)
Rule 614. Required Pleadings.
614.1.Ex parte application/declarations.
614.l.a.Verification of notice. The ex parte application shall include a declaration setting forth the details of the notice given (or of the facts establishing an exception to the notice requirement) and verifying that the discussions required by Rule 613 have occurred.
614.1.b.Evidentiary requirements. Specific declarations must support requests for ex parte orders. Conclusions, feelings, wishes or fears will not adequately support an ex parte order. All declarations shall contain sufficient factual information within the personal knowledge of the declarant to adequately support the relief requested. The court will consider only those issues supported by evidentiary declarations. If there is an insufficient written factual showing to justify a particular order, it will not be granted. Evidentiary deficiencies cannot be corrected by verbal statements to the court.
614.1.c.Emergency nature of request. The evidentiary declarations shall contain facts which demonstrate why the matter is appropriately handled as an ex parte matter, as opposed to being heard on the court's law and motion calendar (with or without an order shortening time). Seeking ex parte relief in the absence of an emergency will result in sanctions being imposed, and the filing of an application for ex parte relief shall be deemed a waiver of any right to further notice prior to the imposition of sanctions.
614.1.d.Disclosure of status quo. There is an absolute duty to disclose the fact that a requested ex parte order will result in a change of the status quo. Absent such disclosure, attorneys' fees and costs incurred to reinstate the status quo may be awarded.
614.2.Proposed order. A proposed order setting forth the relief requested shall be served with the moving papers and presented to the judge at the time of the ex parte hearing. In the event a proposed order is not signed, the judge shall write the words "not signed" in the place reserved for the judge's signature and that unsigned order shall be filed with the court.
(Adopted, effective 1/3/94)
Rule 615. Specific Ex Parte Orders.
615.1.Temporary restraining orders (TROs). When seeking TROs, the current forms adopted by the Judicial Council shall be used. These forms include the order to show cause, application for order and supporting declaration, and temporary restraining orders (family law). Declarations in support of TROs shall be drafted on a separate sheet and attached to the application for order form.
615.2.Ex parte residence exclusion orders. Ex parte residence exclusion orders will not be issued unless there is a clear showing that recent physical violence has occurred or that there is a threat of imminent physical violence. This showing shall include a full description, in detail, of the most recent instance(s) of physical harm, disposition toward violence, intoxication or use of drugs, and shall specify the date of each occurrence.
615.3.Stay away orders. Requests for orders requiring a party to stay away from the residence shall indicate whether that party is residing in the residence or has moved and when he or she moved.
615.4.Custody/visitation orders. A party requesting an order establishing or modifying custody or visitation shall, by evidentiary declarations, establish the following: (a) the provisions of any existing order; (b) the actual custody arrangement; (c) the requested relief; (d) the immediate harm or irreparable injury; and (e) the status of any referral to Child Protective Services or law enforcement.
(Adopted, effective 1/3/94)
Family Law Motions and Orders to Show Cause
Rule 620. Calendaring.
620.1.South county. Subject to the time requirements imposed by statute and these rules, dates for hearings on OSCs and motions may be selected without "reserving" the date with the calendar division or the family law judge. Family law and motion matters are heard in the courtroom of the family law judge on Fridays; odd-numbered cases at 10:00 a.m. and even-numbered cases at 1:30 p.m.
620.2.North county. The proposed dates for hearings on OSCs and motions must be approved by the calendar division prior to filing. Family law and motion matters are heard in the courtroom of the family law judge, every day, at 8:30 a.m.
620.3.Mandatory confirmation of proceeding. No less than 48 hours prior to the scheduled hearing, the moving party shall notify the staff of the family law judge as to whether the hearing will proceed.
620.4. Special calendaring requirements.
620.4.a.When TROs are granted pending a hearing, the hearing shall be set within 25 days of the date of issuance of the TROs.
620.4.b.If no TROs have been granted and mediation is required prior to the hearing by Rule 640.2, the hearing shall be set at least five court days after the mediation appointment.
620.4.c.If TROs have been granted and mediation is required prior to the hearing pursuant to Rule 640.2, the hearing shall be set within 25 days of the date of issuance of the TROs and at least five court days after the mediation appointment. An ex parte order extending time is required to set the hearing more than 25 days after the issuance of TROs and/or less than five days after mediation; parties are admonished to determine the availability of mediation appointments prior to seeking TROs.
(Adopted, effective 1/3/94)
Rule 621. Filing and Service of Pleadings.
621.1.Moving papers. All moving papers must be filed with the county clerk and served at least fifteen days prior to the scheduled hearing date, unless an order shortening time has been granted. When an OSC is issued by the court, it shall be signed and filed with the court clerk before it is served.
621.2.Responsive papers. All papers in response to an OSC or motion must be filed with the court clerk and served no later than 4:30 p.m. on the fifth court day preceding the hearing. Any papers not timely filed will not be considered by the court. A party who has not filed a timely written response will be denied an opportunity to offer oral argument at the time of the hearing.
621.3.Reply papers. All papers in reply to the response to an OSC or motion shall be filed with the court clerk and served no later than 48 hours before the hearing. Papers not timely filed will not be considered by the court.
621.4.Proof of service. Appropriate proofs of service shall be filed with the court clerk at least 48 hours before the hearing.
621.5.Post-judgment orders to show cause. Parties are reminded of the requirements of Family Code Section 215 with respect to service of pleadings subsequent to entry of final judgment. However, the provisions of Family Code Section 215 are not applied to ongoing matters where a judgment of dissolution of status has been entered, but further judgment on reserved issues is pending.
(Adopted, effective 1/3/94)
Rule 622. Hearings.
622.1.Mandatory settlement attempt. Prior to the scheduled hearing, counsel and unrepresented parties shall meet and confer in good faith to review and attempt to resolve the issues pending before the court, to exchange all information required by these rules, and to delineate those issues remaining to be presented to the court at the time of the hearing.
622.2. Conduct of hearings.
622.2.a.At the first call of the calendar, counsel and unrepresented parties shall state their appearances and give a time estimate for argument. If settlement discussions are ongoing, the court shall be informed and the matter may be placed at the "foot" of the calendar.
622.2.b.At the second call of the calendar, counsel and unrepresented parties shall announce their appearances, recite any stipulated matters for the approval, clearly state all contested issues, and may briefly present argument on each contested issue.
622.2.c.If the time estimate made by either party at the first call of the calendar is exceeded, the court may, in its discretion: rule without further hearing; defer the matter to the end of the calendar if time permits; enter interim orders; continue the matter to the next available date; or order the matter off calendar.
622.2.d.The opposing party's presentation shall not be interrupted, other than with valid objections, and all remarks shall be directed to the court.
622.2.e.Once the court has rendered its decision, the case shall not be reargued. Counsel may, however, question the court in order to clarify a ruling or correct a mistake.
622.3.Time limitations. The law and motion calendar is designed for hearings estimated to take no longer than 30 minutes. If it is anticipated that a longer hearing will be required, participants shall so advise the court at the law and motion hearing, and request that the matter be set on the court's short cause calendar.
622.4.Presentation of evidence--Limitations on oral testimony. In granting or denying applications for orders, it is the court's policy to determine contested issues based solely on the pleadings, admissible evidence contained in declarations timely filed with the court, and arguments based thereon. All declarations shall be received in evidence at the hearing, subject to legal objections and cross-examination. Oral testimony will not be permitted except in unusual circumstances. A party seeking to introduce oral evidence at the hearing shall comply with the requirements of California Rules of Court, Rule 323.
622.5.Stipulated continuances. If the parties stipulate to a continuance of the hearing, the parties shall immediately advise the clerk of the family law judge by telephone no later than 48 hours before the hearing and deliver a written stipulation by the start of the hearing.
622.6.Contested requests for continuances. Requests for continuances made at the time of the hearing are strongly disfavored. If a stipulated continuance cannot be obtained, a motion for continuance shall be made at the earliest possible time prior to the hearing.
622.7.Presence of counsel. Unrepresented parties and counsel shall be present in court when the matter is called for hearing, unless they are engaged in another department and have so advised opposing counsel and the clerk of the family law judge.
622.8.Non-appearance of moving party. If the moving party or counsel is not present at the time a matter is called, the relief requested ordinarily will be denied and any affirmative relief requested by the responding party ordinarily will be heard as an uncontested matter.
622.9.Non-appearance of responding party. If the responding party or counsel fails to appear at the time a matter is called, and valid proof of timely service is presented, the court will hear the OSC or motion as an uncontested matter. If valid proof of timely service is not presented, the court may continue the hearing to allow the moving party to submit such proof or take the matter off calendar.
622.10. Matters taken off calendar. After service of the moving papers, no matter shall be taken off calendar without immediate telephonic notice to the clerk of the family law judge and the responding party. Once responding papers requesting affirmative relief have been filed, no matter shall be taken off calendar without the consent of the responding party.
(Adopted, effective 1/3/94)
Rule 623. Preparation of Orders After Hearing.
623.1.Approval of order. If a party is ordered to prepare a court order, that party shall serve the proposed order on the opposing party within 10 court days of the date of issuance of the decision. Within five court days of its receipt, the opposing party shall approve the proposed order or decline to approve the order, stating alternate proposed language. If the parties are unable to agree on the language of the order, then either party may request a hearing.
623.2.Failure to approve proposed order. If the responding party fails to approve or object to the proposed order within five court days of its receipt, the preparing party then may transmit the proposed order to the court clerk for the judge's signature, accompanied by a declaration, with a copy to the opposing party, setting forth the applicable dates and explaining the circumstances.
623.3.Failure to prepare proposed order. If the party ordered to prepare a court order fails to prepare and serve the order as required, then the opposing party may prepare a proposed order and transmit it to the clerk for the judge's signature, accompanied by a declaration, with a copy to the opposing party, setting forth the applicable dates and explaining the circumstances.
(Adopted, effective 1/3/94)
Rule 624. Form of Orders.
624.1.Form of orders. All orders (i.e., all pleadings signed by a judge), shall be printed on pink paper.
624.2.Child support calculations. All orders for child support shall specify the amount of support for each minor child in accordance with Family Code § 4055(b)(7).
(Adopted, effective 1/3/94; amended 1/1/96)
Rules Applicable to OSCs and Motions Regarding Child Support, Spousal Support or Attorneys' Fees and Costs.
Rule 630. Policies Impacting Support Computations.
624.1.Form of orders. All orders (i.e., all pleadings signed by a judge), shall be printed on pink paper.
624.2.Child support calculations. All orders for child support shall specify the amount of support for each minor child in accordance with Family Code § 4055(b)(7).
(Adopted, effective 1/3/94; amended 1/1/96)
Rule 631.Required Service and Filing of Income and Expense Declaration.
An income and expense declaration, printed on green paper, must be filed by each party when support or attorneys' fees is at issue. If a previously filed income and expense declaration is alleged to be current and is to be relied upon, a copy must be attached to the moving or opposing papers. All blanks on the form must be completed, and the best available information provided to the court. Notations such "unk" for "unknown," "est" for "estimate," "N/A" for "not applicable" and "none" should be used to avoid leaving any item blank. If attorneys' fees and/or costs are requested, the paragraph pertaining to attorney's fees must be completed.
(Adopted, effective 1/3/94)
Rule 632. Required Service and Filing of Pay Stubs.
Each party shall affix to his or her income and expense declaration copies of his or her last three pay stubs.
(Adopted, effective 1/3/94)
Rule 633. Required Service and Filing of Support Calculations.
633.1.Declaration re calculations of support. In all matters where child support or temporary spousal support is at issue, a supporting declaration must be filed and served by each party which shall set forth (a) that party's calculation of child support under the state child support law; and (b) if spousal support is at issue, that party's calculation of temporary spousal support under the Santa Clara Support Schedules. The declaration, when taken together with the income and expense declarations, shall contain admissible evidence establishing each fact necessary to the computation of support. Counsel are reminded that, in the absence of a computerized calculation of support, such declarations must also include admissible evidence establishing the applicable tax rates, taxes and tax calculations.
633.2.Computerized calculations of support. Computerized calculations of support may be attached to the declaration required under Rule 633.1.
633.2.a.The calculations must be based on the computer program currently in effect, including the latest released amendments to that program.
633.2.b.The court uses the DISSOMASTER program and will continue to update it as new versions are released. Pursuant to Evidence Code Sections 452(b), 453, 455(b) and 1500.5, the court takes judicial notice of the provisions of the Internal Revenue Code, the Revenue & Taxation Code and applicable regulations, and the accuracy of the amount of applicable taxes calculated by the DISSOMASTER program.
633.2.c. If the DISSOMASTER program is used, the "Formal Printout" (Menu Item 17, displaying a formal printout with both guideline and proposed settlements for both spouses) must be submitted.
633.2.d. If the DISSOMASTER program is used, the default "settings" established in each new version of this software must be employed, thereby including: FICA, FICA Hospital Insurance, Federal Self-Employment Tax, State Disability Insurance, State Income Tax, and Santa Clara Guideline Deductible Spousal Support. California shall be selected as the "Tax State," unless one of the parties resides in another state. The declaration must describe any differences in the assumptions ("settings") employed and those required by this rule.
633.2.e.The computation shall: compute child support under state law; compute spousal support under the Santa Clara Support Schedule; allocate child care expenses equally between the parents; not base guideline child support on adjusted nets; adjust nets for tax consequences of spousal support in fixed shares; and release dependency exemptions via Internal Revenue Code Section 83327.
633.2.f. If a computer program other than DISSOMASTER is used, comparable assumptions and settings shall be used, and a comparable printout shall be provided.
(Adopted, effective 1/3/94)
Rule 634. Required Exchange of Additional Financial Documents.
634.1.Moving party's obligations. Absent issuance of a protective order, at the time of service of moving papers in any matter seeking child support, spousal support, attorneys fees or costs (other than matters commenced by the district attorney under Welfare and Institutions Code Sections 11350, 11350.1, 11475.1, 11476.1 and 11489), the moving party shall also serve each of the following documents as are in the moving party's possession or control. These documents shall not be filed with the court. However, exact duplicates of the documents served and a proof of service shall be available at the time of the hearing to be introduced into evidence if requested and admissible.
634.1.a.If the moving party is a wage earner:
(1)Copies of the last two years' individual federal income tax returns, including all schedules;
(2)Copies of all personal bank account statements for the last twelve months and copies of the last three pay stubs;
(3)Copies of all W-2 and 1099 forms reflecting income received during the last 12 months but not attached to individual tax returns;
(4)Copies of Local Rule 634; and
(5)A declaration explaining the moving party's failure to comply with any of the foregoing requirements.
634.l.b.If the moving party is self-employed:
(1)Copies of the last two years individual federal income tax returns, including all schedules;
(2)Copies of all W-2 and 1099 forms reflecting income received during the last 12 months but not attached to individual tax returns;
(3)Copies of all periodic profit and loss statements and balance sheets prepared in the ordinary course of business for the last twelve months;
(4)Copies of all business and personal bank account statements and corresponding check registers for the last twelve months;
(5)Copies of all loan applications submitted within the past 12 months to financial institutions or third persons on behalf of the moving party;
(6)A written offer to either supply copies of the business books and records requested by the opposing party upon five days' notice or an offer to permit the opposing party or his attorney to inspect such books and records upon five days' notice;
(7)A copy of Local Rule 634; and
(8)A declaration explaining the party's failure to comply with any of the foregoing requirements.
634.1.c. If the moving party holds a 30% or more interest in any business entity:
(1)Copies of the last two years' individual federal income tax returns, including all schedules;
(2)Copies of all W-2 and 1099 forms reflecting income received by the moving party or the business entity during the last 12 months but not attached to tax returns;
(3)Copies of all periodic profit and loss statements and balance sheets prepared in the ordinary course of business for the business entity during the last 12 months;
(4)Copies of all personal bank account statements and corresponding check registers for the last 12 months;
(5)Copies of all loan applications submitted within the past 12 months to financial institutions or third persons on behalf of the moving party;
(6)A written offer to either supply copies of the business books and records requested by the opposing party upon five days' notice or an offer to permit the opposing party or his attorney to inspect such books and records upon five days' notice;
(7)A copy of Local Rule 634; and
(8)A declaration explaining the party's failure to comply with any of the foregoing requirements.
634.2.Responding party's obligations. Absent issuance of a protective order, at the time of service of responsive pleadings in any matter seeking child support, spousal support, attorneys fees or costs, the responding party shall also serve each of the following documents as are in the responding party's possession or control or a declaration explaining the party's failure to comply with the following requirements. These documents shall not be filed with the court. However, exact duplicates thereof and a proof of service shall be available at the time of the hearing to be introduced into evidence if requested and admissible.
634.2.a.If the responding party is a wage earner or unemployed, the same documents as are required to be served by the moving party under Rule 634.1.a, unless such documents were previously served by the moving party.
634.2.b.If the responding party is self-employed, the same documents as are required to be served by the moving party under Rule 634.1.b., unless such documents were previously served by the moving party. However, the responding party shall offer to either supply copies of the business books and records requested by the moving party upon two days' notice or offer to permit the moving party or his attorney to inspect such books and records upon two days' written notice.
634.2.c.If the responding party holds a 30 percent or more interest in any business entity, the same documents as are required to be served by the moving party under Rule 634.1.c., unless such documents were previously served by the moving party. However, the responding party shall offer to either supply copies of the business books and records requested by the moving party upon two days' notice or offer to permit the moving party or his attorney to inspect such books and records upon two days' written notice.
634.3.Automatic protective order. Parties and counsel receiving documents served pursuant to this rule shall not release such documents or disseminate any information contained in those documents to any third party, other than experts retained for the purposes of the family law proceeding.
634.4.Sanctions. Failure to serve documents in accordance with this rule will result in the imposition of sanctions or orders to pay reasonable attorneys' fees occasioned by the failure to comply.
(Adopted, effective 1/3/94; amended 1/1/96)
Rule 635. Reserved
Former Section Entitled "Rules Applicable to OSCs and Motions Requesting Attorneys' Fees, Costs or Sanctions" Repealed effective 1/1/96
Rules Applicable to Mediation
Rule 640. Overview of Mediation.
640.1.Description. The purpose of family custody mediation is to provide a confidential forum for separated parents to meet and discuss custody and visitation issues with a court-appointed mediator. The goal is to develop an agreed-upon parenting plan focused on the best interests of the children.
640.2.Required mediation. Mediation through family custody services is required prior to any hearing on a contested issue of child custody or visitation. Mediation through family custody services is also required when a court order or judgment provides for mediation at the request of either party, and when a court has ordered mediation, even though no motion is pending.
640.3.Voluntary mediation. Where a family law case has been filed but no motion or OSC is pending, a mediation session may be scheduled upon the agreement of both parties to resolve any issue of custody or visitation.
Rule 641. Confidentiality.
All mediation proceedings shall be held in private and all communications between the parties and the mediator shall be deemed confidential. Statements made during mediation by the mediator, or any party, witness or attorney, shall be inadmissible in future hearings; it is the court's policy to impose sanctions upon parties or counsel who attempt to introduce such statements into evidence. The mediator shall not be available as a witness in future proceedings, and no information shall be communicated by the mediator to the court, other than the reports or recommendations described in Rule 642.4. By written agreement or a stipulation made in open court, the parties may agree to waive the confidentiality of the mediation process. However, it is the court's policy not to encourage disclosure of statements made by the children, notwithstanding the waiver of the children's privilege by the holder(s) thereof.
(Adopted, effective 1/3/94)
Rule 642. Mediation Procedures.
642.1.Scheduling mediation. Mediation shall be scheduled by the party seeking resolution of the custody or visitation issue. Mediation is scheduled by calling the mediation appointment secretary in Santa Maria at 346-7679 or in Santa Barbara at 568-3133. If the matter is not an emergency, then the scheduling party shall confer with the other party prior to scheduling a mediation to attempt to select a mutually acceptable date. In the event the parties cannot agree, the scheduling party shall set mediation at his/her discretion and it shall be the burden of the other party to seek a court order changing the mediation date or time.
642.2.Notice of mediation. Within 24 hours of obtaining an appointment for mediation, the scheduling party shall file and serve on the other party a notice of mediation in the form set forth in Appendix A of these rules.
642.3.Cancellation. Only the scheduling party may cancel a scheduled mediation. If the other party is unable to attend the scheduled mediation, that party must reach an agreement with the scheduling party to reschedule, or obtain a court order canceling or rescheduling the mediation. In the event that the mediation will not proceed on the scheduled date, the scheduling party must notify the mediation appointment secretary no less than three days prior to the scheduled mediation. Failure to provide three days' notice of cancellation and/or failure to appear at a properly noticed mediation may result in the court imposing sanctions against the responsible party or counsel.
642.4.Reports of mediator. At the conclusion of mediation, the mediator shall advise the court: whether a tentative agreement was reached in mediation; if no agreement was reached; whether further mediation should be or has been scheduled; if counsel should be appointed for the child; or if a custody investigation is recommended.
642.5.Agreements reached in mediation. If a tentative agreement has been reached between the parties, the mediator shall reduce the agreement to writing and present it to counsel for approval. No agreement shall be presented to the court, nor shall the court approve any agreement, until it has been signed by the parties and approved by their counsel.
(Adopted, effective 1/3/94)
Rule 643. Participants.
643.1.Parties required to be present. The parties and their children are required to participate in mediation. Other significant persons may be included in the process, at the mediator's discretion. In cases of domestic violence a support person may be present at mediation as permitted by Family Code Section 5519.
643.2.Children. Children five years of age and older (as of the date of mediation) shall be present at mediation. The parent having the child with him/her on the date of mediation is required to bring the child. If the child is 12 years of age or younger, that parent shall also provide a person to supervise or remove the child after completion of the child's interview. Children under five years of age shall not be brought to the family custody services offices unless the mediator requires their presence. The mediator may excuse the presence of any child at the mediator's discretion.
643.3.Counsel. Counsel shall be available by telephone during the entire mediation session. Counsel may be personally present at the commencement of mediation. The mediator may exclude attorneys from the mediation proceeding in the sole discretion of the mediator.
643.4.Interpreters. If an interpreter is required to conduct the mediation process, it is the responsibility of the party needing the interpreter to provide one. A family member should not be used as the interpreter without the consent of the other party and opposing counsel. The interpreter's role shall be strictly limited to that of interpreting, not offering opinions or suggestions.
(Adopted, effective 1/3/94)
Rule 644. Policies.
644.1.Weapons and recording devices. No weapons, tape recording or electronic surveillance devices may be brought to the family custody services office.
644.2.Referrals to attorneys. In the event that any party seeks a referral to an attorney, the mediator shall make no recommendation. In the south county, the mediator shall provide the party with a phone number for the Lawyer's Referral Service. In north county, the mediator shall provide the party with a phone number for the north county Bar Association.
644.3.Sanctions. The court may impose sanctions against parties and counsel for abuse of the mediation process, failure to properly schedule mediation, failure to give the required notice, failure to reasonably cooperate in scheduling a mediation, and failure to attend a properly scheduled mediation.
644.4.Conflicts of interest. Absent full disclosure and consent, a mediator shall not participate in the mediation process if an attorney-client or psychotherapist-patient relationship exists or existed between the mediator and any party or counsel.
(Adopted, effective 1/3/94)
Contested Trials
Rule 650. Voluntary Settlement Conferences.
650.1.Policy. In order to promote the early disposition of family law actions, and to reduce the cost of family law litigation, the family law departments of the superior court have adopted a voluntary settlement conference procedure. Voluntary participation in this procedure shall be a good faith attempt to settle one or more contested issues only after the parties have attempted to settle the issues themselves and when the parties are prepared fully to discuss the issues with the court. This procedure shall not be used as a substitute for discovery, settlement discussions between the parties, or preparation for a mandatory settlement conference.
650.2.Procedure. In order to participate in a voluntary settlement conference, the parties shall file, in the department of the judge requested to hear the conference, a joint request for voluntary settlement conference. The joint request shall contain:
650.2.a.Verification that the parties have met and conferred in a good faith effort to settle the contested issues; and that the probability of settling contested issues with the assistance of the court is substantial.
650.2.b.A summary of the contested issues and the respective positions of the parties on those contested issues.
650.3.Calendaring. The calendaring of a voluntary settlement conference will be at the discretion of the judge to whom the request is submitted. Setting of a voluntary settlement conference shall not be grounds for continuance of a master calendar call or trial.
(Adopted, effective 1/3/94)
Rule 651. At-Issue Memorandum.
651.1.Timing. In family law matters, an at-issue memorandum need not be filed within 210 days of the filing of the petition. However, within 10 days of the request of any party to the action, all parties shall cooperate in the preparation and filing of a joint at-issue memorandum. If an opposing party declines to sign the memorandum within 10 days of request, the memorandum may be filed with a declaration explaining the circumstances. The party opposing the filing of the at-issue memorandum shall bear the burden of filing a motion to set aside the at-issue memorandum.
651.2.Filing requirements. Form CLXX-III shall be used and must be submitted on blue paper. At-issue memoranda shall not be accepted for filing unless accompanied by a declaration verifying that the parties and their counsel (if any) have met, face to face, in an attempt to settle the action, or good cause for the failure to hold such a meeting. At-issue memoranda containing short cause estimates shall not be accepted for filing unless also accompanied by: (a) verification that all discovery has been completed; (b) a current property declaration, containing valuations for each asset and liability; and (c) a current Income and Expense Declaration.
(Adopted, effective 1/3/94)
Rule 652. Short Cause Trials.
652.1.Definition. Short cause matters are those that can be heard in one day or less. Counsel should anticipate that one day's trial time is roughly equal to six hours of courtroom time. Cases that exceed the one-day limit may be declared a mistrial and placed on the long cause calendar without preference.
652.2.Setting. In south county, upon receipt of the at-issue memorandum, the calendar clerk shall set the matter for a trial setting conference, at which conference the judge will set the case for a master calendar call in the department to which it is assigned. In north county, upon receipt of the at-issue memorandum, the calendar clerk shall set short cause for a short cause master calendar call on Mondays at 9:00 a.m. In north county, short cause trials will usually be heard within six court days of the short cause master calendar call.
652.3.Meet and confer requirement. Mandatory settlement conferences are not scheduled for short cause matters; however, prior to trial, all parties and counsel shall have participated in a face-to-face meeting in an attempt to resolve the matter.
652.4.Documents to be filed and served in short cause matters. No later than two court days prior to the trial setting conference in south county or the short cause master calendar call in north county, each party shall file and serve:
652.4.a.A trial brief, setting forth: the date of marriage; the date of separation; the minor children of the marriage and dates of birth for each child; the proposed custody and visitation schedule; the proposed child support and spousal support; the community property assets and liabilities; the proposed division of property and proposals for equalization; requested attorneys' fees and costs; requested confirmation of separate property; and requested restraining orders and miscellaneous orders. The brief shall also contain appropriate points and authorities as to issues which involve complex or novel points of law.
652.4.b.If financial matters are at issue and the income and expense declaration on file is not current, a current income and expense declaration;
652.4.c.Copies of the relevant Blue Book pages for all vehicles whose value is at issue;
652.4.d.In the event that the parties have been unable to divide their furniture, furnishings and personal effects by agreement, a jointly-prepared list of those items in dispute, including a description of each item, both parties' positions concerning value and character, and the proposed disposition of each asset; and
652.4.e.A summary of each party's claims for reimbursement or other charges (e.g., claims under In re Marriage of Epstein, In re Marriage of Watts or In re Marriage of Jeffries), listing each claimed item by date, payment amount and payee.
(Adopted, effective 1/3/94)
Rule 653. Long Cause Trials.
653.1.Definition. Long cause matters are those which either party asserts cannot be heard in one day or less.
653.2.Trial setting conference. After the filing of the at-issue memorandum in long cause cases, the parties will be notified of the date, time and place of a trial setting conference. At the trial setting conference, the matter will be assigned dates for a mandatory settlement conference and a master calendar call.
653.3.Mandatory settlement conference. All discovery (including that involving expert witnesses) shall be completed in advance of the date set for the mandatory settlement conference. Each party and the trial attorney for each party shall personally attend the conference. California Rules of Court Rule 227 provides that the failure of any person to prepare reasonably for, appear at, or participate in good faith in a settlement conference as required by local rules or order of the court is an unlawful interference with the proceedings of the court, punishable as contempt. Additionally, the court may order the non-performing party or counsel to pay the opposing party's reasonable expenses, including attorneys' fees, in addition to any other sanctions permitted by law. It is the court's policy to avoid setting a family law mandatory settlement conference before the same judge as will hear the trial.
653.4.Documents to be filed and served prior to mandatory settlement conference. No later than 5 court days prior to the Mandatory Settlement Conference, both parties shall lodge with the court and serve on the other party:
653.4.a.A mandatory settlement conference statement which shall address all contested issues, and the party shall state a settlement proposal as to each contested issue. A recommended form for the Mandatory Settlement Conference Statement in form attached to these rules as Appendix B. The Statement shall be deemed confidential (except as it may relate to the later trial on the issue of attorney's fees or costs) and shall be withdrawn from the Court file and returned to the submitting party at the end of the Mandatory Settlement Conference.
653.4.b.A current income and expense declaration; and, if child or spousal support is an issue, a current Dissomaster printout showing what each party believes to be the appropriate levels of support.
653.5.Master calendar call. At the master calendar call the assigned judge will determine the date for trial. Counsel shall be expected to provide accurate estimates of trial time. It is the policy of the court to commence trial within 10 days of the master calendar call.
(Adopted, effective 1/3/94; amended 1/1/96)
Rule 654. Trial Policies.
654.1.Continuances. Once a master calendar call date is set, no continuances will be granted except upon noticed motion for good cause shown in the department to which the case has been assigned. Counsel are advised that the calendar call is not the appropriate time to request continuances.
654.2.Presence of counsel. Counsel shall be present at the time a matter is called for trial; failure to be present will be deemed sufficient cause for placing the matter off calendar, proceeding to hear the matter in the absence of counsel, or the imposition of sanctions.
654.3.Settled cases. A case will not be removed from the master calendar unless either: (a) a written settlement agreement covering all issues is submitted to the court; or (b) the parties and counsel appear and recite an agreement covering all issues into the record in sufficient detail to enable the court to enforce such agreement.
654.4.Time estimates. Failure to complete a trial within the time estimate given at the time of the master calendar call may result in a mistrial whenever the court's calendar will be adversely affected by allowing time in excess of that estimated.
654.5.Interpreter. The party calling a witness for whom an interpreter is required shall provide, in advance, for the interpreter and shall be responsible for his or her compensation.
654.6.Conference with trial judge. At the mutual request of counsel, prior to the commencement of trial, the court may hold a brief, in-chambers conference to resolve questions concerning the order of proof, motions in limine or other matters having to do with the mechanics of trial. The time necessary for any pretrial conference will be deemed part of the trial time for the purpose of estimating long and short cause matters.
654.7.Marking exhibits. The marking of exhibits is handled differently by each superior court judge. Counsel shall contact the clerk of the judge to whom the case is assigned for instructions regarding the marking of exhibits.
654.8.Trial of requests for fees, costs and sanctions based on conduct. It is the court's policy to bifurcate trial of a request for attorneys' fees, costs or sanctions under Civil Code Section 4370.6 or Code of Civil Procedure Section 128.5 from all other issues before the court and to hear such matters after the conclusion of the trial.
(Adopted, effective 1/3/94)
Judgments
Rule 660. Format.
660.1.Special recitals. All orders concerning child custody, child visitation, child support, spousal support, injunctive relief, retention of jurisdiction, and attorney's fees, as applicable, shall be set forth in the body of the judgment. As to these matters, reference to an attached written agreement of the parties is not acceptable. The division of the community estate and confirmation of separate property, as applicable, however, may be set forth either in the body of the judgment or in an attached agreement incorporated in the judgment by reference.
660.2.Form of judgment. The court requires that all judgments and orders be printed on pink paper.
660.3.Child support calculations. All orders for child support shall specify the amount of support for each minor child in accordance with Family Code § 4055(b)(7).
(Adopted, effective 1/3/94; amended 1/1/96)
Rule 661. Preparation of Judgments.
661.1.Approval of judgment. The party ordered to prepare a judgment shall serve the proposed judgment on opposing counsel within 20 days of the order requiring preparation. Within 20 days of its receipt, opposing counsel shall approve the proposed judgment or decline to approve the judgment, stating alternative proposed language. If the parties are unable to agree on the language of the judgment, then either party may request a hearing.
661.2.Failure to approve proposed judgment. If the responding party fails to approve or object to the proposed judgment within 20 days of its receipt, the party ordered to prepare the judgment may then transmit the proposed judgment to the clerk for the judge's signature, accompanied by a declaration, with a copy to the opposing party, setting for the applicable dates and explaining the circumstances.
661.3.Failure to prepare proposed judgment. If the party ordered to prepare the judgment fails to prepare and serve the judgment as required, then the opposing party may prepare a proposed judgment and transmit it to the clerk for the judge's signature, accompanied by a declaration, with a copy to the opposing party, setting forth the applicable dates and explaining the circumstances.
(Adopted, effective 1/3/94)
Appendix A
)CASE NO. ___________________
)NOTICE OF MEDIATION
)
)
)
)DATE:
)TIME:
)DEPT:
____________________________________
TO: _______________________________ AND TO HIS/HER ATTORNEY OF RECORD:
This matter has been set for mediation with Family Custody Services before a court-appointed mediator on _________________[date] at _____________[time] at the Family Custody Services Offices located at ________________________[address].
The purpose of family custody mediation is to provide a forum for separated parents to meet and discuss custody and visitation issues in a secure environment, with a trained, professional mediator. The goal is to develop a parenting plan structured around the best interests of the children. Mediation is designed to reduce anger and polarization by encouraging a cooperative parenting relationship.
The process is private and confidential. A mediator may not testify unless both parents waive the confidentiality of the mediation, and a judge finds the testimony admissible.
The mediator's role is to help parents resolve contested issues. The mediator does not judge or give legal advice. Mediation is not psychotherapy. The mediator's role is strictly one of a facilitator of communication, a guide for defining issues, exploring the alternatives, and achieving a parenting plan through communication and negotiation. Parents are encouraged, but not required, to reach an agreement.
Children five years of age and older will be interviewed by the mediator. The interview with the children will not be used to elicit a preference between parents. Parents are strongly discouraged from asking children to express a preference, as this can be extremely divisive and emotionally harmful.
Any child five years of age and older shall be brought to mediation by the parent having the child with him/her on the date of mediation. If any of the children are 12 years of age or younger, the parent having the child with him/her on the date of mediation shall also arrange to bring to mediation a person to watch the child during the mediation process, and/or to remove the child after the interview with the mediator, so that both parents may jointly participate in mediation without the children present.
Unless good cause is shown, the court may issue fines against attorneys or parties who: cancel mediation with less than three days' notice, fail to appear at a scheduled mediation, or fail to produce a child at mediation as required by these rules.
For further informofion about mediation, you should contact your attorney or contact the Family Custody Services Office at _________________ [telephone number].
If there is a history of domestic violence, the Family Custody Services Office should be advised immediately.
Appendix B
CAPTION )CASE NO. ______________________
)MANDATORY
)SETTLEMENT
)CONFERENCE
)STATEMENT
)
)DATE:
)TIME:
)DEPT:
_____________________________________
This Mandatory Settlement Conference Statement is submitted on behalf of [Petitioner] [Respondent] [Claimant].
1.Introduction
a.Summary of Uncontested Issues
b.List of Contested Issues
2.Statistical Facts
a.Date of marriage, date of separation, length of marriage in years and months;
b.The number and age of minor and adult children;
c.The age of the parties;
d.Any issues arising from the interpretation of the statistical facts; and
e.All material facts upon which a party relies on any contested issue regarding statistical facts.
3.Restraining Orders
a.Prior orders.
b.Petitioner's contentions, including points and authorities.
c.Respondent's contentions, including points and authorities.
4.Child Custody and Visitation
5.Child Support
a.Describe any existing order for child support and payment history;
b.Set forth child support calculation;
c.Summarize all material facts regarding unusual circumstances affecting child support calculations.
6.Spousal Support
a.Describe any existing order for spousal support and payment history.
b.Set forth gross and net income and expenses of each party;
c.Summarize all material facts regarding unusual circumstances affecting spousal support calculations.
7.Contested Property Issues
List each item of property, real or personal, and for each item of property, furnish the following information, where relevant:
a.Date of acquisition;
b.How title is vested;
c.Whether it is community property, separate property, a combination thereof, or quasi-community property;
d.The current fair market value of the property, the nature, extent and terms of any encumbrance against the property, and the current net equity of the property.
e.A statement of all material facts and law in support of the party's characterization of property.
f.A statement of all material facts and law which are the basis for any apportionment or reimbursement claimed, the formula or apportionment or reimbursement, and the value of each party's community property and separate property interests.
8.Debts and Obligations
a.State existing orders on debts and/or reimbursement claims.
b.List all debts and obligations of the parties that are liabilities of the community, by name of creditor, the balance due on the date of separation, the current balance and the nature, extent and terms of any security for the debt.
c.List all debts and obligations of the parties that are separate property liabilities, by name of creditor, the balance due on the date of separation, the current balance and the nature, extent and terms of any security for the debt.
d.List all reimbursement claims, by date of payment, source of payment and amount of payment.
9.Attorneys' Fees, Expert Fees and Costs
a.Provide a summary of existing orders.
b.List the amounts paid by a party on account of the other party's attorneys' fees and expert fees and costs, the dates of payment and the balance due, if any.
c.List the amounts paid by a party on account of his or her attorneys' fees and expert's fees and costs, and balances due.
10.Statement of Attorneys
"This Statement covers all matters in dispute in this proceeding. All documents have been exchanged and all discovery has been completed. If partial or total settlement is not reached at the Mandatory Settlement Conference, my client and I are prepared to go to trial as noticed and scheduled by the Court."
_______________________________________
Attorney for_______________________________________
Appendix I — LITIGATION GUIDELINES FOR PRACTICING BEFORE THE SUPERIOR COURT
This is a statement of the policies of the Santa Barbara Superior Court adopted in conjunction with the Santa Barbara County Bar Association. These policies are applicable to all proceedings pending before the Santa Barbara Superior Court.
A.General Principles:
1.A lawyer must work to advance the lawful and legitimate interest of his or her client. This duty includes an obligation not to act abusively or discourteously. Zealous representation of the client's interest should be carried out in a professional manner.
2.A lawyer should not engage in derogatory conduct which has as its basis the race, national origin, religion, gender, sexual orientation or other immutable characteristics of any person.
3.Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally. A lawyer should not behave offensively, derogatorily or discourteously even when his or her client so desires. If necessary, a lawyer should advise a client that he or she will not engage is such conduct, even if directed.
4.Law firms and other legal organizations should include the subject of professional and civil conduct in their programs for the training of new lawyers and continuing legal education.
B.Alternatives to Litigation:
1.A lawyer should consider the possibility of settlement or alternative dispute resolution in every case and, when appropriate, bring such alternatives to the client's attention.
C.Courtroom Conduct:
1. A lawyer should be punctual and prepared for all court appearances so that all matters may commence on time and proceed efficiently. Lawyers should treat judges, counsel, parties, witnesses, and court personnel in a civil and courteous manner, not only in court but in depositions, conferences, and all other written and oral communications.
2.A lawyer shall avoid personal attacks on other counsel. Even if the zealous representation of a client may necessitate allegations of wrongdoing on the part of an adverse party or opposing counsel, a lawyer must review such allegations to ensure that they are justified.
3.A lawyer should be professional, accurate, and succinct in arguments to the court and shall not cite facts not in the record.
4.Lawyers should agree to mutual stipulations of undisputed facts.
D.Service of Papers:
1. The timing and manner of service of papers shall not be used to disadvantage the receiving party. Service should be made personally or by facsimile transmission when it is likely that service by mail, even when allowed, will prejudice the opposing party.
E.Continuances:
1.A lawyer shall consider opposing counsel's legitimate calendar conflicts when scheduling or postponing hearings, depositions, meetings or conferences, unless to do so would be contrary to the legitimate interest of his or her client. A lawyer should not arbitrarily or unreasonably refuse a reasonable request for an extension of time, as permitted by court rules.
F.Discovery:
1.Discovery shall not be used to harass opposing counsel or the opposing party or for the purpose of delaying the efficient resolution of a dispute. A lawyer should explore with opposing counsel alternatives to formal discovery that will achieve the same objective at lower costs.
2.A lawyer should not engage in conduct during a deposition that would not be appropriate in the presence of a judge.
3.Discovery should be limited to seeking and verifying such information and documents that a lawyer reasonably believes may be necessary for the prosecution or defense of an action. A lawyer responding to discovery or complying with court rules requiring disclosure should not employ artificially restrictive interpretations to avoid disclosure of relevant and non-privileged information or documents.
4.Document production should not be delayed to prevent opposing counsel from inspecting documents or evidence prior to scheduled depositions, trial or hearing or for any other tactical reason.
5.Parties should be informed of their obligation to comply with discovery obligations in a timely manner.
6.A lawyer's submissions to the court should be professional in tone. Briefs and pleadings should not be written in an inflammatory style.
7.A lawyer should at all times strive to be concise and to state accurately the law, the facts and the parties' positions.
8. Written briefs or memoranda of points and authorities should not cite facts that are not properly part of the record.
9.A lawyer should not seek judicial sanctions as a means of harassment, annoyance or intimidation.
G.Ex Parte Communications with the Court:
1. A lawyer may not communicate ex parte on the substance of a pending case with a judge before whom such case is pending, except as permitted by law. In scheduling ex parte hearings, reasonable efforts should be made to accommodate the schedule of opposing counsel.
2.Unless specifically permitted or invited by the court, letters to the court or letters between counsel should not be sent to judges.
FAMILY CUSTODY SERVICES POLICIES AND PROCEDURES MANUAL
(Revised 5/28/86)
Pursuant to Santa Barbara County Superior Court Rule 410, the following Chapter 1 of the Family Law Policy Manual is hereby adopted:
1. Court Policy Regarding Mediation.
It is the policy of this court, pursuant to Civil Code Section 4607, that parties shall attempt to reach an agreement between themselves regarding child custody and visitation, with the assistance of the mediator prior to any litigated proceedings. The purpose of such mediation shall be to reduce anger and bitterness which may exist between the parties, and to develop an agreement based on the best interest of the child(ren), assuring the child's or children's close and continuing contact with both parents after the marriage (or nonmarital relationship) is dissolved. Family custody services is established to help achieve this purpose.
2. Matters Requiring Mediation.
Whenever a party to a dissolution of marriage, guardianship, stepparent adoption, or any other non-juvenile court proceeding requests a hearing at which the custody of, or visitation with a minor child or children is at issue, the parties shall participate in mediation of such issue(s) with a family custody mediator hereinafter referred to as "mediator." The mediator shall be appointed by the court and shall be a staff member of family custody services.
3. Cost of Mediation.
The cost to the parties for the mandatory mediation service provided by the superior court is included in the fees for the filing of documents with the court. Any other costs incurred for psychological evaluations or custody investigations pursuant to Civil Code Section 4602 shall be paid by the party(s) in such proportions as the court may order.
4. Procedure for Setting a Matter for Mediation.
The party (or the party's attorney, if any) requesting a court hearing involving any issues of child custody and/or visitation shall schedule an appointment with the mediator. The mediation appointment shall be at the mutual convenience of all parties, their attorneys, and the mediator. It shall be the responsibility of the party requesting the hearing to contact the opposing party (or the party's attorney, if any) in order to verify that the time scheduled for mediation is acceptable.
An appointment for mediation may be scheduled by contacting, in person or by telephone, the office of the mediator at the superior court in either Santa Barbara (963-6150) or Santa Maria (922-7831), depending upon the location of the case.
If it is unknown to the party requesting a hearing whether or not the issues of custody or visitation will be contested, because there has been no filing of responsive papers, there shall be no requirement for scheduling an appointment for mediation prior to the date set for hearing. If it appears at the time set for hearing that the issues of child custody and/or visitation are, in fact, contested, the court shall, at the calendar call, refer the matter to mediation and shall continue the hearing date to allow for mediation of the matter prior to the hearing. The Court shall have the discretion to order immediate mediation of a matter in emergency situations and the mediator may reschedule existing appointments without prior notice in such situations.
The request for an appointment for mediation shall be made as quickly as possible after the filing of the pleading requesting a hearing, in order to facilitate setting the matter for mediation at the earliest possible date. If no mediation has occurred prior to the date set for hearing, the court may, in its discretion, either continue the matter or take the matter off calendar according to the following guidelines:
a.If a request for a mediation appointment is made in a timely fashion, but due to the schedules of the mediators, the parties and/or their attorneys, it is impossible for the mediation to take place prior to the scheduled hearing date, it shall be the responsibility of the parties or their attorneys to prepare a stipulation for continuance and order thereon and to present said stipulation to the court for approval prior to hearing. It is the policy of the court to order continuances of the hearing date in such situations, provided that the stipulation states that a mediation appointment has been set for a date certain.
b.If it appears to the court that no reasonable effort has been made by the party requesting the hearing to schedule an appointment for mediation prior to the hearing date, the court may place the matter off calendar providing that such action does not jeopardize the best interests of the child(ren) involved.
All parties and their attorneys shall make every reasonable effort to make themselves available for mediation at the earliest possible date. The mediator shall be entitled to inform the court of any failure or refusal to cooperate with the mediation process by any party or attorney, and the court may impose sanctions upon any party or attorney who willfully fails or refuses to cooperate with the mediation process.
Notice of cancellation of a scheduled mediation appointment must be provided to family custody services by the responsible attorney(s) or party(s) no later than five days prior to the appointment. Except for good cause shown, failure to provide such notice or failure to appear at the scheduled mediation may result in sanctions by the court against the responsible attorney(s) or party(s).
5. Procedures for Mediation Session.
a.A mediator shall be assigned to each matter at the discretion of supervising family custody mediator, or by the court in emergency situations.
b.The attorneys of record for the parties, if any, and shall accompany their clients to the mediator's facilities and shall introduce their clients to the mediator. The attorneys shall be prepared to outline their clients' positions for the mediator and to provide any other information which might assist the mediator during the mediation session.
c.The mediator shall have the authority to exclude counsel from any part of the mediation proceedings and to involve such other person(s) in the proceedings as the mediator may deem appropriate.
d.The mediator shall have the duty to assess the needs and interests of the child(ren) involved and shall be entitled to interview the child(ren) when the mediator deems such interview appropriate or necessary. The children shall be brought to the mediation session unless otherwise directed in advance by the mediator. Whenever children are brought to the mediation facility, the parents shall provide supervision for the children so that both parents may participate in the mediation session jointly without the children present.
e.The mediation session shall be held in private and shall proceed according to the discretion of the mediator. The proceedings shall be confidential and all communications, verbal or written, by the parties to the mediator shall be privileged within the meaning of Section 1040 of the Evidence Code, and shall not be disclosed by the mediator or the parties without the prior written consent of the party who gave the communication, or without consent given in open court.
f.The mediator shall review the court case file in the matter to be mediated, may confer with the attorneys of record, either with or without both attomeys being present, and shall discuss the matter with the parties. An attempt shall be made to resolve the disputed issues through a mutually agreeable decision made by the parties. More than one mediation session may be held in any matter according to the discretion of the mediator.
6.Procedures After Mediation.
a.Following the mediation session, and prior to any hearing, the mediator shall inform the court whether or not a resolution of the dispute has been reached, by filing with the court a "mediation report." The mediation report shall be in the form provided by the clerk of the court, a copy of which is attached as an appendix to this manual.
b.In the event that a proposed agreement between the parties is reached through mediation, the mediator shall convey the terms of the proposed agreement to the attorneys for the parties, either in person, by telephone or in writing. Any written stipulation including the terms of the agreement reached in mediation, shall be prepared by the parties or their attorneys and presented to the court for approval on an ex parte basis, or the stipulation may be presented orally to the court.
c.Any stipulation signed by the parties and waiting approval by the court shall have the same force and effect as if already approved by the court, until the court has either actually approved the stipulation and entered its order in conformity with the stipulation, or until the court has disapproved the stipulation by minute order or other written order. It is the policy of this court to approve any stipulation entered by the parties after mediation, unless it appears to the court that unusual or extraordinary circumstances exist which indicate that the stipulation would not serve the best interests of the child(ren) involved.
d.If an agreement between the parties is not reached through mediation, the mediator may, as a part of the mediation report, recommend to the court that an investigation, pursuant to Civil Code Section 4602, be conducted and/or that temporary mutual restraining orders be issued to protect the well-being of the child(ren). The mediator may also recommend to the court any other action to assist the parties to resolve the contested issues prior to the hearing.
e.In cases where an agreement has not been reached through mediation, the court may, at anytime, request a full evaluation, report and recommendation by the family custody services staff, pursuant to Civil Code Section 4602. If the parties present a stipulation and order to the court for a custody evaluation pursuant to Civil Code Section 4602, it is the policy of this court to consult with the mediator who handled the case for an opinion whether the custody evaluation is warranted, prior to approval or disapproval of the order. The procedures and policies for custody evaluations shall be established by the supervising family custody mediator.
f.In cases where extraordinary circumstances exist, the court may request from the mediator a report and recommendation for temporary custody and visitation pending a full evaluation pursuant to Civil Code Section 4602. When such a request is made by the court, the court may hold a conference with the mediator in the presence of the attorneys and/or the parties, in chambers or in open court, as the court shall direct in its discretion. In the alternative, the court may request that the mediator's report and recommendation(s) regarding custody and/or visitation be in writing. Copies of any such written report and recommendation(s) shall be provided to the parties or their attorneys by the mediator.
The mediator shall not, in making said recommendation(s), breach the confidentiality of the mediation session(s). Specifically, the mediator shall not disclose to the court or to any other person or entity, any information learned by the mediator during the course of the mediation session unless both parties later specifically waive the confidentiality of the information either in writing or in open court. If no recommendation has been made to the court, and no waiver of confidentiality of the media tion proceedings has been made by both parties, the mediator shall not be subpeonaed as a witness by any party and shall not be subject to cross-examination.
Whenever the mediator and/or evaluator makes a recommendation to the court regarding custody and/or visitation, the mediator and/or evaluator shall be subject to cross-examination by the parties, unless the parties waive their right to such cross-examination after the completion of the mediation or evaluation.
g.Any recommendation by the mediator or evaluator to the court shall not be binding on the court.
7. Follow-Up Mediation.
If, after an agreement has been reached between the parties through mediation, further disagreements arise involving custody and/or visitation, a follow-up mediation appointment may be scheduled upon the mutual request of the parties, without the filing of any pleading requesting a court hearing. Said follow-up mediation may be arranged by contacting the mediator directly, however, follow-up mediations shall be given low scheduling priority compared to other mediations with pending court hearing dates. If the follow-up mediation results in a new agreement between the parties, said agreement may be presented to the court in the form of a stipulation and order and shall be subject to the provisions of Section 6(c) of this manual. If the follow-up mediation does not result in a new agreement, the parties may file a motion for modification of the existing order and the motion shall be heard by the court without further mediation.
Procedures after mediation, outlined in Section 6 of this manual, shall also apply to follow-up mediation.
APPROVED:
JAMES M. SLATER
Presiding Judge
Mediation Report
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR
THE COUNTY OF SANTA BARBARA
In re the Marriage of)No. ____________________
Petitioner:)MEDIATION REPORT
)
and )
)
Respondent: )Hearing date:
____________________________________________
TO THE COURT:
A mediation conference took place in this matter on ________________________
[ ] An agreement has been reached between the parties; a written Stipulaton and Order will be
presented by the parties to the Court for approval.
[ ] A temporary agreement has been reached between the parties, pending the final disposition
of this matter by further agreement of the parties or by the Court; a written Stipulation and
Order will be presented by the parties to the Court for approval.
[ ] No agreement has been reached between the parties; this matter is returned to the Court for disposition.
[ ] An evaluation pursuant to Civil Code Sec. 4602 is recommended.
[ ] The evaluation questionnaire and waiver forms necessary for the initiation of a C.C. Sec.
4602 evaluation were delivered to each party at the mediation conference.
[ ] Other:
DATED ____________
FAMILY CUSTODY MEDIATOR
