Rule 5.235.Ex parte communication in child custody proceedings

Ex parte communication is a communication on the substance of a pending case without the knowledge, presence, or consent of all parties. The definition of “communication” is deliberately wide: anything said in person, by telephone, voicemail or videoconference; anything written in a letter, document, email or fax; an illustration or photograph; directly or through third parties.

The prohibition runs between court-connected or court-appointed mediators and evaluators on one side and the attorney for any party, court-appointed counsel for a child, or the court on the other. It does not restrict communication between the mediator or evaluator and a party — whether self-represented or represented.

Five exceptions are permitted: scheduling an appointment; investigating or disclosing an actual or potential conflict of interest or dual relationship; a child’s appointed counsel interviewing a mediator as the Family Code allows; a court expressly authorizing communication with the child’s counsel in other circumstances; and — the substantive one — the mediator or evaluator informing the court that a restraining order is necessary to prevent an imminent risk to the physical safety of a child or party. The parties may also stipulate, in open court or in writing, to allow communication with the attorneys or the court.

Separately, the rule does not stand in the way of mandated duties: reporting suspected child abuse, warning of threatened violence against an identifiable victim, handling a domestic violence case under the statutes and rule 5.215, or the court investigating complaints.