This article continues my series on the various agencies that one encounters in a Family Law proceeding beyond the Court, itself.
Last week, I gave tips on how to make the most of your all-important appointment with FCS. Now we’ll talk about what to do if you get an undesirable recommendation (if your appointment happened in a recommending county) At some point (by statute, at least ten days before the hearing), you will get a custody and visitation recommendation. It will tell you the name of the counselor, the date of your hearing and the date the FCS appointment occurred. Then there will be a several-page recounting of the events of the meeting and any subsequent collateral contacts made (if the FCS counselor called a therapist, CPS worker or other person who might be connected with the matter in an official capacity). Finally, there will be the counselor’s recommendation regarding custody, visitation, holiday schedules, the need for supervision, etc.
If the recommendation be undesirable, you have options. Pursuant to McLaughlin v. Superior Court (1983), 140 Cal. App. 3d 473, you have the right to examine a counselor before the Court adopts (or chooses not to adopt) his/her recommendation. This means you can make the counselor take the stand to answer your questions.
Before that can happen, you have to get the counselor to attend the hearing as a witness. You can contact FCS to find out their procedures as they vary from county to county. You can also make sure your counselor will be available on the hearing date (they take vacation like most people). In San Diego, requesting the attendance of a counselor is done via subpoena. This subpoena may be served on the FCS receptionist (of the branch of the Court in which your case is heard) so long as it is clear on the form who is being subpoenaed. The subpoena must be accompanied by a $150 check for the counselor’s time. San Diego FCS will send the subpoena to its legal department for acceptance or objection; generally, San Diego’s FCS wants ten days’ notice to ensure a counselor can be there. In Riverside county, a subpoena need not be used; one requests the counselor’s presence via letter. Again, call ahead to make sure you know the rules and the availability of your counselor.
Your examining strategy will depend on the recommendation. For instance, the FCS counselor may have misinterpreted the facts, or the facts in your case may have changed in the time since the appointment. You can ask the counselor if, in light of the accurate/different circumstances, the counselor would make a different recommendation. If the answer is yes, the Court should take that into consideration. The counselor may say no, preferring to defend his/her position rather than concede the true state of affairs. If the position the counselor holds is absurd enough, this will damage his/her credibility in the Court’s eyes, and an order at variance with the FCS recommendation may be made.
It may well be that the FCS recommendation is in accord with the facts. In this case, you can ask the counselor, should certain facts change, if the counselor’s recommendation would also change. If so, you may persuade the Court to make an order with conditional provisions based on changed circumstances. If you fail to do so, you may still be all right. If this a pre-judgment hearing in a divorce case, the orders are temporary, and you will have another bite at the apple, in settlement or at trial. Otherwise, you can request that the order not be “final” pursuant to Montenegro vs. Diaz (2001)26 Cal. App.4th 249, so that the order will be easier to modify in the future. In either case, you can also retain a forensic psychologist whose opinion will generally hold more sway than that of an FCS counselor.
Of course, this kind of analysis is sophisticated, and there is no substitute for experienced legal representation. You don’t have to go it alone. Schedule a consultation with us, and we can help.
Disclaimer: The information provided in this blog is for general informational purposes and it should not be relied on as legal advice. An attorney-client relationship is not formed by reading the information on this site and can only be formed by a written agreement that sets forth the scope of the relationship and the fee arrangement. There is no substitute for expert legal assistance. If you need representation, schedule a consultation with the Barefoot team.