Custody and Visitation Road Map

Parent Orientation

In all initial motions or requests for order in which custody or visitation is an issue, each party is ordered to complete Parent Orientation immediately by either contacting Family Court Services (FCS) at (408) 534-5600 or by completing Orientation online. The Court may also order parents to attend Parent Orientation at any time. Generally, parents are only required to attend Parent Orientation once, but the Court may order parties to take the class more than once. Attendance at or participation in online Parent Orientation must occur before mediation, unless the Court orders otherwise. Upon request, parents who must travel a substantial distance or suffer some other hardship may request to attend Parent Orientation and the first mediation appointment on the same day. (Superior Court of CA County of Santa Clara, Rule 2.A.)

Mediation

Upon receipt of the parties’ FCS Intake Form for mediation, FCS shall schedule the first available mediation appointment and both parties shall attend the mediation. Mediation is an opportunity for the parties to work with a neutral third party in an attempt to create a custody schedule that both parties will agree to. Attorneys do not attend mediation. If the date assigned by FCS is not acceptable, either party may request one rescheduled date for mediation. If a party does not notify FCS of a request to reschedule at least 48 hours before the mediation appointment, that party will be assessed a fee to FCS. There are no fees for FCS mediation, provided that there is a pending custody or visitation motion before the Court. The parties may stipulate to private mediation for custody and visitation disputes, at their own expense. The judge will determine whether the parties must also participate in mediation with FCS. Mediation proceedings shall be private and confidential, and the mediator’s notes shall be confidential, unless the parties and the mediator agree otherwise. Absent agreement, the mediator will not be called to testify or to make recommendations to the Court. However, the mediator shall report any allegations of child abuse to the proper authorities. (Superior Court of CA County of Santa Clara, Rule 2.B.)

At the mediation, if the parties agree to some or all of the custody and visitation issues, the mediator shall prepare the written agreement and shall mail copies of the document to the parties and attorneys. The parties may object to the mediated agreement by submitting written objections to FCS, along with a proof of service on all attorneys or self-represented parties. If FCS receives no written objections with proof of service within 15 calendar days from the date of the mailing of the mediated agreement, the agreement will be submitted to the Court for review and signature. Family Court will send a copy of the agreement and order, when signed and filed by the Court, with proof of service to the parties and attorneys. If no return mediation is scheduled, the parties shall proceed to a Judicial Custody Conference (JCC). (Superior Court of CA County of Santa Clara, Rule 2.B.-C.(1))

Judicial Custody Conference (JCC)

If the parties do not reach a full agreement at mediation, or an agreement was reached but subsequent objections are filed and no return mediation is scheduled by FCS, the mediator shall serve on the attorneys and any self-represented parties a Referral to JCC. The Referral to JCC shall describe generally the remaining disputed issues. Parties who attend private mediation may schedule a JCC by sending a letter to the Clerk’s Office, with proof of service on all parties, requesting a JCC and verifying (1) that the parties have completed mediation that has not resulted in an agreement, and (2) that each party attended Parent Orientation. (Superior Court of CA County of Santa Clara, Rule 2.C.(2)a-c)

Except where contact between self-represented parties is prohibited by a Restraining Order, all parties and attorneys shall confer in good faith no later than 10 calendar days before the scheduled JCC to resolve any remaining issues. If the issues are resolved, the parties shall immediately notify FCS and the Court and prepare a stipulation for judge’s signature. Each party shall serve and file a Judicial Custody Conference Statement at least 10 calendar days before the scheduled JCC. All parties and counsel are required to attend the JCC, unless attendance has been excused in advance by the judge. If a party fails to appear at the JCC, a hearing may be held on the day of the JCC or on another date, and custody or visitation orders may be made. (Superior Court of CA County of Santa Clara, Rule 2.C.(2)d-f)

At the JCC, if the judge is not able to assist in resolving any remaining custody or visitation disputes at the JCC, the judge may order a custody evaluation to be performed by the staff of FCS or by a private evaluator; may schedule a hearing or trial to decide any disputed issues; may order the parties to return to mediation; or may make other orders as necessary for the best interest of the child. If the Court orders an FCS evaluation, the first appointment shall be scheduled before the parties leave the JCC. (Superior Court of CA County of Santa Clara, Rule 2.C.(2)f)

Custody Evaluations

When an evaluation is ordered at FCS, the Court shall set a Custody Settlement Conference (CSC) on a date between 90 and 100 calendar days from the initial appointment. By stipulation and with the Court’s approval, the parties may nominate a private evaluator to perform an evaluation at the parties’ expense. The Court may also appoint a private evaluator over objection at a noticed JCC, Status Conference, CRC, or other hearing. The parties shall share the costs of the private evaluation equally, unless the Court orders a different allocation. The Court shall set a CSC date between 140 and 150 calendar days from the date of the order to a private evaluation, or earlier if the private evaluator and the judge agree. (Superior Court of CA County of Santa Clara, Rule 2.C.(3)a-b)

Brief Focused Assessment (BFA)

In lieu of a custody evaluation, by stipulation and with the Court’s approval, the parties may nominate a private evaluator to perform a Brief Focused Assessment (BFA) at the parties’ expense. The Court may also appoint a private evaluator to conduct a BFA over objection at a noticed JCC, Status Conference, or other hearing. A Brief Focused Assessment is a limited custody evaluation. The parties shall share the costs for the BFA equally, unless the Court orders a different allocation. The Court shall set a CSC date between 90 and 100 days from the date of the BFA Order or earlier if the evaluator and the judge agree. (Superior Court of CA County of Santa Clara, Rule 2.C.(3)c)

Evaluation reports are confidential and shall be sent to the Court, attorneys and self-represented parties only. The report shall not be duplicated, disseminated, or in any other way provided or shown to any individual not a party to the proceedings, except consulting experts and court-ordered therapists and evaluators. Evaluation reports, including psychological evaluations, shall not be attached as exhibits to any papers filed with the Court, and shall not be quoted or summarized in any publicly filed document. FCS will charge for evaluations, unless a fee waiver is granted for a party. (Superior Court of CA County of Santa Clara, Rule 2.C.(3)g-h)

Custody Settlement Conference (CSC)

All attorneys and parties and the evaluator shall attend the scheduled CSC to attempt to settle all contested custody and visitation issues. Each party shall file and serve a CSC Statement at least 10 calendar days before the CSC, clearly stating any remaining custody or visitation issues and any proposed alternative language. If agreement is not reached at the CSC, the Court may set the case for trial or hearing. If a party fails to appear at the CSC, a hearing may be held on the day of the CSC or on another day set by the Court and custody or visitation orders may be made. (Superior Court of CA County of Santa Clara, Rule 2.C.(5))

Emergency Screenings

In any case in which an emergency exists, the Court may order a staff member of FCS, other than the mediator, to conduct an “emergency screening” (a preliminary and limited investigation), to make recommendations regarding the temporary custody, visitation, and related conditions for the minor children. In most cases, the Court will not order any emergency screening based solely on an ex parte application, but may order protective orders until the hearing date on an adequate showing that serious harm to a child may result if no order is issued. FCS or the Court will provide instructions for emergency screening to all parties and attorneys when a screening is ordered. Attorneys and parties must be available as required by FCS, or the Court may reschedule the screening. After an order to an emergency screening, the parties may agree to a private emergency screening at the parties’ expense. The Court will not provide reports of criminal history or CPS records to any private screener.

If the parties agree to and sign the screening recommendations, they shall be submitted to the Court for review and signature. If a party objects to the screening recommendations, a brief hearing, generally less than thirty minutes, will be held on the day of the screening, or as soon as possible. Fees shall be charged for any screening performed by FCS, unless a fee waiver is granted. (Superior Court of CA County of Santa Clara, Rule 2.C.(6))

For more information, please see Local Family Rules of Court, the Flowchart for Custody and Visitation, or the Flowchart for Emergency Screening.