Generally, ex parte communication is prohibited in legal proceedings. In child custody proceedings, Family Code section 216 recognizes specific circumstances in which ex parte communication is permitted between court-connected or court-appointed child custody mediators or evaluators and the attorney for any party, the court-appointed counsel for a child, or the court. This rule of court establishes mandatory statewide standards of practice relating to when, and between whom, ex parte communication is permitted in child custody proceedings. This rule applies to all court-ordered child custody mediations or evaluations. As in Family Code section 216, this rule of court does not restrict communications between a court-connected or court-appointed child custody mediator or evaluator and a party in a child custody proceeding who is self-represented or represented by counsel.
For purposes of this rule:
(1) "Communication" includes any verbal statement made in person, by telephone, by voicemail, or by videoconferencing; any written statement, illustration, photograph, or other tangible item, contained in a letter, document, e-mail, or fax; or other equivalent means, either directly or through third parties.
(2) "Ex parte communication" is a direct or indirect communication on the substance of a pending case without the knowledge, presence, or consent of all parties involved in the matter.
(3) A "court-connected mediator or evaluator" is a superior court employee or a person under contract with a superior court who conducts child custody evaluations or mediations.
(4) A "court-appointed mediator or evaluator" is a professional in private practice appointed by the court to conduct a child custody evaluation or mediation.
(c) Ex parte communication prohibited.
In any child custody proceeding under the Family Code, ex parte communication is prohibited between court-connected or court-appointed mediators or evaluators and the attorney for any party, a court-appointed counsel for a child, or the court, except as provided by this rule.
(d) Exception for parties' stipulation.
The parties may enter into a stipulation either in open court or in writing to allow ex parte communication between a court-connected or court-appointed mediator or evaluator and:
(1) The attorney for any party; or
(2) The court.
(e) Ex parte communication permitted.
In any proceeding under the Family Code, ex parte communication is permitted between a court-connected or court-appointed mediator or evaluator and (1) the attorney for any party, (2) the court-appointed counsel for a child, or (3) the court, only if:
(1) The communication is necessary to schedule an appointment;
(2) The communication is necessary to investigate or disclose an actual or potential conflict of interest or dual relationship as required under rule 5.210(h)(10) and (h)(12);
(3) The court-appointed counsel for a child is interviewing a mediator as provided by Family Code section 3151(c)(5);
(4) The court expressly authorizes ex parte communication between the mediator or evaluator and court-appointed counsel for a child in circumstances other than described in (3); or
(5) The mediator or evaluator is informing the court of the belief that a restraining order is necessary to prevent an imminent risk to the physical safety of the child or party.
(Subd (e) amended effective January 1, 2007.)
(f) Exception for mandated duties and responsibilities.
This rule does not prohibit ex parte communication for the purpose of fulfilling the duties and responsibilities that:
(1) A mediator or evaluator may have as a mandated reporter of suspected child abuse;
(2) A mediator or evaluator may have to warn of threatened violent behavior against a reasonably identifiable victim or victims;
(3) A mediator or evaluator may have to address a case involving allegations of domestic violence under Family Code sections 3113, 3181, and 3192 and rule 5.215; and
(4) The court may have to investigate complaints.
(Subd (f) amended effective January 1, 2007.)
Rule 5.235 amended effective January 1, 2007; adopted effective July 1, 2006.
Title 5, Family and Juvenile Rules-Division 1, Family Rules-Chapter 8, Child Custody and Visitation (Parenting Time) Proceedings-Article 4, Counsel Appointed to Represent a Child; adopted January 1, 2013.