§ Rule 16 Pre-trial procedures

Rule 16. Pre-trial procedures

(a) Pre-trial Conferences, Objectives. In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conference before trial for such purposes as:

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pre-trial activities;

(4) improving the quality of the trial through more thorough preparation;

(5) facilitating the settlement of the case; and

(6) recommending and encouraging that the parties use some form of alternative dispute resolution and, in appropriate cases, ordering the parties to engage in mediation or a court conducted settlement conference.

(b) Scheduling and Planning.

Except in cases exempted by order of the court as inappropriate, the judge or magistrate shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail or other suitable means, enter a scheduling order that limits the time

(1) to join other parties and amend the pleadings;

(2) to file and hear motions; and

(3) to complete discovery.

The scheduling order may also include:

(4) The appointment of a special master under Rule 53 to assist the parties in the management of any discovery provided for in the Idaho Rules of Civil Procedure.

(5) the date or dates for conference to review settlement or ADR options;

(6) the date(s) for other conferences, including a final pretrial conference and trial; and

(7) any other matters appropriate in the circumstances of the case.

The order shall be issued as soon as practical and, unless it is totally impractical, no more than 180 days after the filing of the complaint. A schedule shall not be modified except by leave of the judge or magistrate upon a showing of good cause.

The participants at any conference under this rule may consider and take action with respect to:

(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative evidence;

(5) identification of witnesses and documents, the need and schedule for filing and exchanging pre-trial briefs, and the date or dates for further conferences and for trial;

(6) the advisability of referring matters to a magistrate or master;

(7) the possibility of settlement or the use of extrajudicial procedures including alternative dispute techniques to resolve the dispute;

(8) the form and substance of the pre-trial order;

(9) the disposition of pending motions;

(10) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(11) such other matters as may aid in the disposition of the action;

(12) mediation of child custody and visitation issues in domestic relations cases; and

(13) any parties and/or witnesses needing an interpreter as provided by Idaho Court Administrative Rule 52.

At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed.

(d) Final Pre-trial Procedure--Formulating Issues. A pre-trial conference shall be held in any action if requested by any party in writing at least 20 days before trial, or if ordered by the court at any time, and the court may direct the attorneys for the parties, or any party appearing without an attorney, to submit a pre-trial memorandum containing substantially the information enumerated in Rule 16(e) and to appear before it for a conference to consider:

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses and the disclosure of the identity of persons having knowledge of the relevant facts and who may be called as witnesses;

(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury; and

(6) Such other matters as may aid in the disposition of the action.

After the conference, the court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.

(e) Pre-trial Stipulation. No later than three (3) days prior to the date set for the final pre-trial conference all parties to an action may file a written stipulation in lieu of the final pre-trial conference which shall include the following:

(1) A statement that counsel have produced for examination by all other parties all exhibits required to be produced at a pre-trial conference, a list of which must be attached to the stipulation;

(2) A statement that counsel have in good faith discussed settlement unsuccessfully;

(3) A statement that all pre-trial discovery procedures under Rules 26 to 37 of the I.R.C.P. have been completed except that the parties may recite good cause for the entry of an order allowing such discovery procedures to be taken within a specific time not beyond the time set for trial;

(4) A statement that all answers or supplemental answers to interrogatories under Rule 33 reflect facts known to the date of the stipulation;

(5) The estimated time of trial, whether a jury has been demanded and a statement of the dates on which the parties or their attorney could not be available for trial;

(6) A form of proposed order in lieu of pre-trial conference, which order shall contain at a minimum:

(A) A concise description of the nature of the action;

(B) A statement of all claims;

(D) Any amendments to the pleadings and any issues of law abandoned by any of the parties;

(E) A statement of the issues of fact which remain to be litigated at the trial, and any dispute as to whether such issues are formed by the pleadings;

(F) A statement of the issues of law which remain to be litigated at the trial;

(G) Orders on all matters which will expedite the trial;

(H) A descriptive list of all exhibits proposed to be offered in evidence reciting which exhibits shall be received in evidence without objection and those to which no objection will be made on grounds other than irrelevancy or immateriality;

(I) A provision that counsel shall not offer any exhibits at the trial other than those listed in (H) above, except when offered for impeachment purposes or when otherwise permitted by the trial court in the interest of justice;

(J) A list of the names and addresses of all witnesses which each party may call to testify at the trial, except for impeachment witnesses, and all other witnesses shall be excluded from testifying in the trial of the action unless permitted by the trial court in the interest of justice;

(K) Where good cause has been shown therefor in the stipulation, a provision for specific discovery procedures to be undertaken within a specified time;

(L) A provision for the insertion of the trial date.

(f) Pre-trial Order. After the pre-trial conference or the filing of a pre-trial stipulation, the court shall enter a final pre-trial order pursuant to Rule 16(d) in generally the form described in Rule 16(e)(6). The court shall forthwith cause copies of the signed pre-trial order to be served on all parties or their attorneys of record in the action.

(g) Objections to Pre-trial Order. Any party to an action may file written objections to a pre-trial order within 14 days from service thereof, which objections shall be heard prior to trial in the same manner as a motion under these rules.

(h) Exhibits and Witnesses. In the event no final pre-trial conference is held, the court may enter an order directing the parties to file with the court and serve on all opposing counsel, or upon parties not represented by counsel, a list of all exhibits to be offered at trial and a list of the names and addresses of all witnesses which such party may call to testify at the trial, except for impeachment witnesses and exhibits. Any exhibits or witnesses discovered after such disclosure shall immediately be disclosed to the court and opposing counsel by filing and service stating the date upon which the same was discovered. Failure to comply with this rule may be grounds for excluding an exhibit from admission into evidence or for excluding a witness from testifying in the trial of the action. Provided the court, for good cause shown and in order to prevent injustice may permit additional exhibits to be used or additional witnesses to testify at the trial.

(i) Sanctions. If a party or party's attorney fails to obey a scheduling or pre-trial order, or if no appearance is made on behalf of a party at a scheduling or pre-trial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or his own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing him or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

(j) Mediation of Child Custody and Visitation Disputes.

(1) Definition of “Mediation.” Mediation under this rule is the process by which a neutral mediator appointed by the court or agreed to by the parties assists the parties in reaching a mutually acceptable agreement as to issues of child custody and visitation. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties, and not the decisions of the mediator.

(2) Matters Subject to Mediation. All domestic relations actions involving a controversy over custody or visitation of minor children at the pre-trial, trial and post-decree stages in the courts of this state shall be subject to mediation regarding issues of custody, visitation, or both.

(3) Selection of Mediator. The court shall permit the parties to select a mediator from the list of registered mediators compiled by the Supreme Court and maintained by the Administrative Director of the Courts. If the parties are unable to select a mediator, the court shall appoint one.

(4) Requirement to Attend Parent Education and Mediation Orientation. The district court of any judicial district may provide by local rule that all parties to any domestic relations case involving children, whether or not a trial or contested case has been scheduled, be required to attend such parent education and mediation orientation, unless excused by the court.

(5) Authority of the Court. A court shall order mediation if, in the court's discretion, it finds that mediation is in the best interest of the children and it is not otherwise inappropriate under the facts of the particular case.

(6) Qualifications of Mediator--Application and Documentation.

(A) The Supreme Court will compile a list of registered mediators. Any applicant seeking to be placed on the Supreme Court Roster of registered mediators shall submit to the Administrative Director of the Courts, the following:

(i) An Application for Registration, which includes an affidavit of compliance executed by the applicant attesting that the applicant has fulfilled the requirements; [FN1] to be placed on the Supreme Court list of registered mediators.

(ii) A copy of the applicant's degree, license or certificate.

(iii) Proof of completion of the required mediation training as provided in sections (6)(B) and (6)(C) of this rule.

(B) Qualifications--Professional Credentials. To be placed on the list of registered mediators compiled by the Supreme Court, the applicant must have at least one of the following professional credentials:

(i) The applicant is recognized by Idaho Mediation Association as a Certified Professional Mediator (CPM), or membership in the Association for Conflict Resolution at the advanced practitioner level or other national organizations with equivalent standards for membership.

(ii) The applicant is a member of one of the following: the Idaho judiciary; licensed member of the Idaho State Bar Association; licensed psychologist; licensed professional counselor; licensed clinical professional counselor; licensed master social worker; licensed clinical or independent practice social worker; licensed marriage and family therapist; certified school counselor; or certified school psychologist.

(iii) The applicant possesses a bachelors degree.

(C) Training. There are two independent training criteria for all applicants as set forth more fully below. An applicant must complete the substantive training set forth in subsections (i) and (ii) below. In addition, such training shall be approved and/or provided by an accredited college or university, the Idaho Mediation Association, Association for Conflict Resolution, Association of Family and Conciliation Courts, the Idaho State Bar, or the Idaho Supreme Court, Administrative Office of the Courts.

(i) Applicants under subsections 6(B)(1) and (iii) must have completed a minimum of 60 hours mediation training within the past two years, 20 of which must be in the field of child custody mediation. Applicants under subsection 6(B)(ii) must have completed a minimum of 40 hours mediation training within the past two years, 20 of which must be in the field of child custody mediation. The training hours required under this section may not include any online training programs.

(ii) At least 20 hours of the mediation training required for applicants under section 6(B)(ii), and at least 40 hours of the training requirements for applicants under sections (6)(B)(i) and (iii), shall include the following topics, at least 30 percent of which must be in the practice of mediation skills:

(a) Information gathering (intake; obtaining facts; screening issues);

(b) Mediator relationship skills (neutrality; confidentiality; nonjudgmental);

(d) Problem solving skills (identify problems, positions, needs, interests; brainstorm alternatives);

(e) Conflict management skills (theories of conflict management; mediation models; reducing tensions; power imbalances);

(f) Ethics (standards of practice; typical problems);

(g) Professional skills (substantive knowledge areas; case management; drafting agreements).

(iii) The 20 hours of child custody training required in section 6(C)(i) shall include the following topics :

(a) Conflict resolution theory;

(b) Psychological issues in separation, divorce, and family dynamics;

(c)Domestic violence;

(d) Issues and needs of children;

(e) Child custody mediation processes and techniques;

(f) Family law, including custody and support;

(g) Mediation ethics--a minimum of two hours.

(D) Continuing Education of Mediators. Beginning the next July 1 after a mediator has been placed on the Supreme Court list of registered mediators, the mediator must take at least thirty (30) hours of child custody training in one or more of the areas as set forth in Section (C)(iii) in each and every three (3) years period following the July 1st date. This training must include a minimum of two hours of mediation ethics training. The mediator must file proof of compliance with this requirement with the Administrative Office of the Courts by July 1 of the year the continuing education is due. Along with proof of compliance, a mediator under section 6(B)(ii) must also send proof of current licensing. Up to ten (10) of the thirty (30) required hours may be satisfied through approved participatory online CEU programs.

(E) The administrative district judge in each judicial district may, by administrative order, require mediators to comply with additional criteria beyond those stated in subsections (6)(B) and (6)(C) of this rule.

(F) Persons approved as child custody mediators prior to the effective date of the amendment to this rule shall not be required to satisfy the training requirements of parts (6)(B)(i), (6)(B)(ii) and (6)(B)(iii) of this rule, but shall be required to fulfill the additional continuing education requirements of part (6)(D) of this rule.

(7) Duties of Mediator.

(A) The mediator has a duty to define and describe for the parties the process of mediation and its cost during the initial conference before the mediation conference begins. The description should include the following:

(i) The difference between mediation and other forms of conflict resolution, including therapy and counseling;

(ii) The circumstances under which the mediator will meet alone with either of the parties or with any other person;

(iii) Any confidentiality of the mediation proceedings and any privilege against disclosure;

(iv) The duties and responsibilities of the mediator and of the parties;

(v) The fact that any agreement reached will be reached by mutual consent of the parties;

(vi) The mediator shall advise the participants to seek independent legal counsel prior to resolving the issues and in conjunction with formalizing an agreement;

(vii) The information necessary for defining the disputed issues.

(B) The mediator has a duty to be impartial, and to advise all parties of any circumstances bearing on possible bias, prejudice or impartiality.

(i) The parties shall have the right to have counsel review any resulting agreement before its submission to the court.

(ii) Any agreement submitted to the court shall be subject to court review and approval. The court shall reject such agreement only if it is not in the best interests of the child or children involved.

(8) Communications Between Mediator and the Court.

(A) The mediator and the court shall maintain no contact or communication except that the mediator may, without comment or observation, report to the court:

(i) That the parties are at an impasse;

(ii) That the parties have reached an agreement. In such case, however, the agreement so reached shall be reduced to writing, signed by the parties and submitted to the court by one or both of the parties, if pro se; otherwise, through their attorneys, for the court's approval.

(iii) That one or both of the parties have failed to attend the mediation proceeding;

(iv) That meaningful mediation is ongoing;

(v) That the mediator withdraws from mediation;

(vi) The allegation or suspicion of domestic violence.

(9) Contact Between Mediator, Attorneys and Other Interested Persons. The mediator and the attorneys for the parties may communicate with one another in the following manner:

(A) Any contacts between the attorneys and the mediator shall be either in writing or by conference call;

(B) Attorneys are excluded from mediation conferences unless their presence is requested by the mediator or ordered by the court. Other interested persons may participate in the mediation upon consent of both parties.

(10) Termination of Mediation--Status Report. The court or the mediator may terminate mediation proceedings if further progress toward a reasonable agreement is unlikely. The mediator shall notify the court when the mediation has been concluded. Notice of the status of the mediation process shall be submitted to the court within 28 days from the date of the initial order requiring mediation.

(k) Mediation of Civil Lawsuits.

(1) Definition of Mediation. Mediation under I.R.C.P. 16(k) is the process by which a neutral mediator appointed by the Court or agreed to by the parties assists the parties in reaching a mutually acceptable agreement. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties, and not the decisions of the mediator,

(2) Matters Subject to Mediation. All civil cases other than child custody and visitation disputes are eligible for referral to mediation under this subsection. Child custody and visitation disputes shall be mediated pursuant to I.R.C.P. 16(j).

(3) Authority of the Courts. The referral of a civil action to mediation does not divest the court of the authority to exercise management and control of the case during the pending mediation.

(4) Referral to Mediation. In its discretion a court may order a case to mediation, as follows:

(A) Upon motion by a party;

(B) At any I.R.C.P. 16 conference;

(C) Upon consideration of request for trial setting, pursuant to I.R.C.P. 40(b), if all parties indicate in their request or response that mediation would be beneficial; or

(D) At any other time upon seven (7) days notice to the parties if the court determines mediation is appropriate.

(5) Selection of the Mediator. The parties shall have twenty-eight (28) days from entry of the mediation order, or such other time as the court may allow, to select any person to act as mediator and report their selection to the court. If the parties do not select a mediator within twenty-eight (28) days, then the court shall appoint a mediator from the judicial district's list of mediators maintained pursuant to I.R.C.P. 16(k)(13)(A).

(6) Scheduling of the Mediation Session(s). Unless the court otherwise orders, the initial mediation session shall take place within forty-two (42) days of the reporting of the selection or the appointment of the mediator.

(7) Reports. Within seven (7) days following the last mediation session, the mediator or the parties shall advise the court, with a copy to the parties, whether the case has, in whole or in part, settled.

(8) Compensation of Mediators. Mediators shall be compensated at their regular fees and expenses, which shall be clearly set forth in the information and materials provided to the parties. Unless other arrangements are made among the parties or ordered by the court, the interested parties shall be responsible for a prorata share of the mediator's fees and expenses. If a mediator is not paid, the court, upon motion of the mediator may order payment.

(9) Impartiality. The mediator has a duty to be impartial, and has a continuing duty to advise all parties of any circumstances bearing on possible bias, prejudice or partiality.

(10) Attendance at the Mediation Session(s). The attorney(s) who will be primarily responsible for handling the actual trial of the matter, and all parties, or insurers, if applicable, with authority to settle, shall attend the session(s), unless otherwise excused by the mediator upon a showing of good cause.

(11) Confidentiality. The mediator shall abide by the confidentiality rules agreed to by the parties. Confidentiality protections of I.R.E. 408 and 507 shall extend to mediations under this Rule.

(12) Sanctions. The mediator shall be subject to sanctions, including removal from the roster of mediators, if the mediator fails to assume the responsibilities provided herein.

(13) Qualifications of Mediators. Each trial court administrator shall maintain a list of mediators who meet the qualifications of subsection A, and rosters from dispute resolution organizations that meet the criteria set forth in subsection B below.

(A) Mediation Registration--Qualifications of Court-Appointed Mediators

(i) The Administrative Director of the Courts shall compile and distribute at least annually a list of mediators. For that purpose, the Administrative Director of the Courts shall gather from all applicants an application demonstrating that the applicant:

(a) is a member of the Idaho State Bar;

(b) has been admitted to practice law for not less than five (5) years; and

(c) has attended a minimum of forty (40) hours of mediation training that complies with the standards set forth in I.R.C.P. 16(j)(6) (B)(iv).

(ii) In order for a person to remain on the list of mediators maintained by the Administrative Director of the Court, the mediator must submit proof that the mediator has completed a minimum of twenty (20) hours of additional training or education during the preceding two (2) calendar years. The training required by this rule shall be acquired by completing a program approved by an accredited college or university or by one of the following organizations: Idaho State Bar Association, Idaho Mediation Association, or Society of Professionals in Dispute Resolutions.

(B) Mediation Registration--Sponsors of Additional Rosters of Mediators

(i) A public or private dispute resolution organization may make its roster of mediators available to the Administrative Director of the Courts for distribution to the trial court administrators if it documents that it has:

(a) an established selection and evaluation process for neutrals;

(b) a mechanism for addressing complaints brought against neutrals; and

A compilation of the organization's selection, evaluation, published code of ethics, and complaint processes that can be distributed to the parties shall be provided.

(C) A list and roster(s) of mediators distributed by the Administrative Director of the Courts, pursuant to subsections A and B, above, must contain the following information about each mediator:

(a) name, address, telephone and FAX number(s);

(b) professional affiliation(s);

(d) legal and/or mediation training and experience; and

(e) fees and expenses.

(l) Appointment of Parenting Coordinator in Child Custody and Visitation Disputes

(1) Definition of “Parenting Coordinator”. A Parenting Coordinator under this rule is a qualified neutral person appointed by the court or agreed to by the parties to assist the parties in resolving issues relating to parenting. The Parenting Coordinator will aid the parties in identifying disputed issues, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of collaboration in parenting. The Parenting Coordinator will make such decisions or recommendations as may be appropriate when the parties are unable to do so. The goal of the Parenting Coordinator should always be to empower the parents in developing and utilizing adaptive parenting skills so that they can resume the parenting and decision making role in regard to their own children. When it is not possible for the parents to agree, the Parenting Coordinator shall provide only the amount of direction and service required in order to serve the best interest of the child by minimizing the degree of conflict between the parties.

(2) Reference to a Parenting Coordinator. A reference to a Parenting Coordinator shall be the exception and not the rule. Such a reference shall be made only when

a) the issues appear to be intractable or have been subject to frequent re-litigation; or

b) the well-being of a minor child is placed at risk by the parents' inability to co-parent civilly; or

c) one or both parents has committed domestic violence; or

d) one or both parents is chemically dependent or mentally ill; or

e) when other exceptional circumstances require such appointment to protect the child's best interests.

(3) Matters in Which Appointment May be Made. The court, upon agreement of the parties or after having found on the record that the circumstances specified in Section 2 are present, may appoint a Parenting Coordinator in any action involving custody of minor children. The appointment may be made at any stage in the proceeding after entry of an order, decree, or judgment establishing child custody.

(4) Selection of Parenting Coordinator. In the absence of an agreement by the parties, the court may only appoint qualified Parenting Coordinator who has met the requirements set forth in Section 6.

(5) Authority of the Court.

(A) The appointment of a Parenting Coordinator does not divest the court of its exclusive jurisdiction to determine fundamental issues of custody, visitation, and support, and the authority to exercise management and control of the case. A court may order the appointment of a Parenting Coordinator upon seven (7) days notice to the parties. If either party objects, the court will hold a hearing prior to making the appointment.

(B) By way of illustration and not limitation the order may authorize the Parenting Coordinator to determine such matters as:

i. time, place and manner of pick up and delivery of the children;

ii. child care arrangements;

iii. minor alterations in parenting schedule with respect to weeknight, weekend or holiday visitation which do not substantially alter the basic time share allocation;

iv. participation by significant others and relatives in visitation;

v. first and last dates for summer visitation;

vi. schedule and conditions of telephone communication with the children;

vii. manner and methods by which the parties may communicate with each other;

viii. approval of out-of-state travel plans; and

ix. any other issues submitted for immediate determination by agreement of the parties.

(C) By way of illustration and not limitation the order may authorize the Parenting Coordinator to make recommendations to the court on such matters as:

i. Which parent may authorize counseling or treatment for a child;

ii. Which parent may select a school;

iii. Supervision of visitation;

iv. submission to a custody evaluation;

v. Appointment of an attorney or guardian ad litem for a child; and

vi. Financial matters including child support, health insurance, allocation of dependency exemptions and other tax benefits, liability for particular expenditures for a child.

(6) Qualifications of Parenting Coordinators.

(A)(1) To be appointed as a Parenting Coordinator in the absence of a stipulation of the parties a person must be on the list of mediators compiled by the Supreme Court pursuant to Rule 16(j)(6)(B)(ii). Parenting Coordinators must have participated in at least twenty (20) hours of training in domestic violence and lethality assessment as set out in (A)(2) below within two years of the initial application. They must also have a basic familiarity with child development as it pertains to issues of bonding, attachment, and loss in early life and future child development. Each Parenting Coordinator must, at his or her own expense, submit to a criminal history check as provided for in Rule 47, I.C.A.R.

(2) The twenty (20) hours of training required shall be in one or more of the following areas: (a) domestic violence; (b) violence in families; (c) child abuse; (d) anger management; (e) prediction or evaluation of future dangerousness; or (f) psychiatric causes of violence; and shall be acquired by completing a program approved or sponsored by one of the following associations: (a) Idaho Psychiatric Association; (b) Idaho Psychologists Association; (c) Idaho Nursing Association; (d) Idaho Association of Social Workers; (e) Idaho Counselors Association; (f) Council on Domestic Violence and Victim Assistance; (g) Idaho State Bar; (h) Idaho Supreme Court; (i) an accredited college or university; or (j) any state or national equivalent of any of these organizations. Any program that does not meet the criteria set out in this subsection may be submitted for approval either prior to or after completion.

(B) If the application indicates the applicant lacks any of the necessary qualifications the application will be conditionally rejected. The applicant will be provided thirty (30) days after the conditional rejection to provide any additional documentation concerning his or her qualifications or criminal history. The rejection shall become final thirty (30) days after the conditional rejection unless the Supreme Court determines after reviewing any additional documentation submitted that the applicant is qualified and fit to perform as a Parenting Coordinator.

(7) Duties of Parenting Coordinator.

(A) The Parenting Coordinator has a duty to define and describe for the parties, in writing, the role of the Parenting Coordinator during the initial conference with the parties. The description should include the following:

1. The difference between a Parenting Coordinator and other forms of conflict resolution, including therapy, counseling, and mediation;

2. The circumstances under which the Parenting Coordinator will meet alone with either of the parties or with any other person;

3. Any confidentiality of the proceedings and any privilege against disclosure;

4. The duties and responsibilities of the Parenting Coordinator and of the parties;

5. The fact that the resolution of any disagreement not reached by mutual consent of the parties may be decided by the Parenting Coordinator subject to review by the court upon motion or petition of either party;

6. Their right to seek independent legal counsel prior to resolving the issues or in conjunction with formalizing an agreement;

7. The information necessary for defining and resolving the disputed issues; and

8. The duty to keep an adequate record of contacts with the parties and other interested persons in the case. Such documentation shall be privileged and confidential except upon order of the court to reveal it.

(B) The Parenting Coordinator has a primary duty to be impartial, and to advise all parties of any circumstances bearing on possible bias, prejudice, or impartiality.

(C) Best interest of the children is defined by section 32-717, Idaho Code, and nothing in this rule is intended to supersede, replace, or invalidate section 32-717.

(D) The Parenting Coordinator may not make any modification to any order, judgment or decree; however the Parenting Coordinator may allow the parties to make minor temporary departures from a parenting plan if authorized by the court to do so, and the appointment order should specify those matters which the Parenting Coordinator is authorized to determine. The order will specify which determinations will be immediately effective and which will require an opportunity for court review prior to taking effect.

(8) Procedure.

(A) The order appointing the Parenting Coordinator shall specify the procedure to be followed by the Parenting Coordinator. The procedure specified should be simple, swift, and inexpensive. The parties will be given an opportunity to be heard on every issue submitted to the parenting coordinator but the procedure to be followed can be informal, and need not comply with the rules of evidence and procedure. Unless requested by the parties, no record need be made except for the Parenting Coordinator's decision or recommendation. In emergencies and other circumstances involving severe time constraints the decisions may be made orally, but in a fashion communicated to both parties and followed by written confirmation within a reasonable time thereafter. Decisions with respect to matters submitted under paragraph 5(B) will be effective when communicated to the parties. Recommendations
under paragraph 5(C) will be effective fourteen (14) days after submission to the court.

(B) The Parenting Coordinator may report to the court:

1. The status of the case, including, but not limited to, those specific duties set forth in the Parenting Coordinator's order of appointment. The order appointing the parenting coordinator shall require at least one status report to be made to the court by the Parenting Coordinator every six months;

2. Recommendations of the Parenting Coordinator;

3. That the Parenting Coordinator withdraws from the case.

(C) The parties shall have the right to have counsel review any action taken by the Parenting Coordinator. The Parenting Coordinator and the attorneys for the parties may communicate with one another in the following manner:

(i) Any contacts between the attorneys and the Parenting Coordinator may be either in writing or by telephone call or in person and may be ex parte, provided, however, that both parties shall maintain a log of all contacts in the case;

(ii) Attorneys are excluded from conferences with the parties unless the Parenting Coordinator requests their presence.

(9) Termination of Parenting Coordinator--Status Report.

(A) The court or the Parenting Coordinator may terminate the appointment if further efforts by the Parenting Coordinator would be contrary to the best interests of the children, if the children have reached the age of majority, or if the parties stipulate to such termination.

(B) Either party may petition the court for termination of the Parenting Coordinator's appointment whenever the Parenting Coordinator has exceeded his/her mandate or has acted in a manner inconsistent with this Rule, or has demonstrated bias.

(10) Role of Counsel. Counsel for either party shall not by this rule be constrained from continuing to represent and advocate for their clients in a manner consistent with their professional ethics.

(11) Compensation of Parenting Coordinators. Parenting Coordinators shall be compensated at their regular fees and expenses, which shall be clearly set forth in the information and materials provided to the parties. Unless other arrangements are made among the parties or ordered by the court, the interested parties shall be responsible for a pro rata share of the Parenting Coordinator's fees and expenses, commensurate with their respective contributions to total child support. No advance retainer shall be required to be paid by any party. If a Parenting Coordinator is not paid, the court, upon motion of the Parenting Coordinator, may order payment.

(12) Statistical Records. The Supreme Court shall monitor and keep records of the outcomes of Parenting Coordinator appointments for purposes of quality control and to provide information upon which to evaluate the costs and benefits of such appointments. Each Parenting Coordinator will provide such information as may be requested by the Supreme Court for these purposes.

(m) Alternative Dispute Resolution Screening

1. Authority of the Court. In all domestic relations cases involving children, the presiding judge may order the parties to participate in ADR screening for the purpose of assessing whether parents are appropriate or prepared to engage in mediation. The secondary purpose is to provide additional recommendations to parents and the court which may enhance the appropriateness of mediation, or to provide alternatives for resolving issues which will broaden parenting options.

2. Qualifications of ADR Screeners. ADR Screeners are appointed by the judge. To be eligible for appointment as an ADR Screener, the applicant must be currently licensed by the state of Idaho as a psychologist, licensed master social worker, or licensed professional counselor practitioner.

3. Standards for ADR Screening Referral Reports.

(a) Content. An ADR report is generated from a structured and standard interview that is conducted with each biological parent. The content of the interview with both parents is provided to the court in the form of a written report. No ADR report will be filed if one or both parties fail to appear at the interview. Attached to the report is a NCIC criminal history check on each parent and the needs of the child(ren) based on reports by the parties and observations of the ADR Screener. The recommendations provided to the court and parents are designed to protect child(ren) from the potentially negative impact of parental conflict and the adversarial process. ADR Screening and Referral Reports will not make recommendations for custody and visitation. The ADR report should be used as a case management tool.

(b) Factors. Factors considered in determining the appropriateness of mediation or other recommendations for alternatives to resolving issues include, but are not limited to, the following:

1. Compliance of both parties with the ADR process.

2. Issues of domestic violence, including party's ability to maintain impulse control and/or anger management.

3. Use of, or allegations surrounding the use of, drugs and alcohol.

4. Ability of each parent to articulate his or her own needs and concerns and consider the needs of their child(ren).

5. Parties' mental health and emotional stability.

4. Disclosure of Report. The ADR screening report is exempt from disclosure pursuant to I.C.A.R. 32(d)(14)(B).

(n) Registration of Private Civil Litigation Evaluator.

1. Application for Registration as a Private Civil Litigation Evaluator. The Administrative Director of the Courts will compile a list of private civil litigation evaluators. Persons interested in being placed on this list must submit an application to the Administrative Director of the Courts on a form prescribed by the Supreme Court. Applicants shall furnish, in addition to information, proof that the applicant possesses the qualifications for registration on the Supreme Court's list of private civil case evaluators as set forth in this rule. An applicant shall also be required to identify his or her area(s) of legal expertise and experience.

2. Qualifications of Private Civil Litigation Evaluators. In order for a person to be placed on the Supreme Court's list of private civil litigation evaluators, a person must certify by application that he or she is an active member of the Idaho State Bar in good standing and has held such membership for a minimum period of seven (7) years; or is a justice or judge who has retired from the Idaho judiciary or who has been designated a senior judge by the Idaho Supreme Court pursuant to Section 1-2005 or 1-221, Idaho Code.

In addition, an applicant must be familiar with the Small Lawsuit Resolution Act (Section 7-1501 et seq., Idaho Code) and the rules, practice and procedures of the Idaho Supreme Court governing proceedings in the district courts of the State of Idaho; and have the background experience and training to fairly, impartially and competently evaluate a civil case pursuant to the provisions of the Small Lawsuit Resolution Act.

3. Roster of Civil Litigation Evaluators. The Administrative Director of the Courts shall maintain a roster of civil litigation evaluators who meet the requirements of this rule. The roster shall indicate, in addition to other information, the county or counties in which evaluators will accept appointments. The Administrative Director shall publish a copy of the roster, including information relating to the evaluator, on the Idaho Supreme Court's website.

4. Oath of Evaluator. In each case, prior to undertaking an evaluation, a private civil litigation evaluator must sign a written oath that he or she will faithfully and impartially discharge the obligations and duties of an evaluator in a timely manner as prescribed by law, and to represent that he or she does not have a conflict of interest regarding the parties or the subject matter of the dispute that would prevent him or her from rendering a fair and impartial opinion in the conflict. The oath of the evaluator shall be substantially in the following form:

I, __________, hereby accept appointment as evaluator in the above-captioned case. I certify that I meet the qualifications and shall fulfill the obligations of an evaluator, including the impartial and timely discharge of the duties of an evaluator. I have been informed of the identities of the parties to the case and the subject matter of the dispute and I have no conflict of interest nor any bias that would prevent me from rendering a fair and impartial opinion in the conflict.

________________________________________________________________________________

Signature

SUBSCRIBED AND SWORN to before me this ___ day of ________, ___.

________________________________________________________________________________

Signature

(o) Supervised access to children.

(a) Coverage. This rule shall apply in cases, other than those brought under the Child Protective Act and Juvenile Corrections Act, in which the court orders supervised access to children.

(b) Purpose. This rule sets forth the duties and obligations for providers of supervised access to children. The best interest of children is the paramount consideration in deciding the manner in which supervision is provided.

(c) Scope of Service. These standards govern supervised access. Each court may adopt local court rules that are not inconsistent with these standards and which are necessary to implement these standards.

(d) Definitions.

(i) Supervised Access is any contact between a supervised party and one or more children in the presence of an approved provider.

(ii) Provider includes any individual or entity appointed to provide supervised access between a supervised party and one or more children. Although accountable to the court, a provider is not a party to the court proceeding.

(iii) Exchange Supervision/Supervised Transfer is supervised access designed to facilitate the movement of one or more children between persons with the right to access those children. In this role, the provider waits at a neutral location and makes the exchange. Objective reports may be filed with the court regarding the behavior of the parties and the well-being of the child. Exchanges may take place at a variety of locations and times. The length of time between the first half of the exchange between parties and the return half may fluctuate between several hours or several weeks.

(iv) Non-Professional Provider is any provider who is not paid for providing supervised access services.

(v) Professional Provider is any provider paid for providing supervised access services.

(vi) Therapeutic Provider is a professional provider who is also a licensed mental health professional (including a psychologist, licensed master social worker, licensed professional counselor, marriage and family therapist, or an intern working under direct supervision of one of these professionals) and is ordered to provide Therapeutic Supervision.

(vii) Therapeutic Supervision includes the provision of supervised access services between the child and supervised party, as well as therapeutic intervention and modeling to help improve the parent-child interactions. A therapeutic provider may, when ordered, make evaluations and recommendations for further parent-child contact.

(viii) Supervised Party refers to a person who is authorized to have contact with a child only by supervised access or who is subject to an order for supervised exchanges/transfers.

(e) Court Control of Supervised Access. The court shall make the final decision as to who the provider will be, the manner in which supervised access is provided, and any terms or conditions thereof. The court may consider recommendations by the attorney or guardian ad litem for the child, the parties and their attorneys, family court services staff, evaluators, therapists, and reports submitted by providers of supervised access services.

(f) Qualifications of Providers.

(i) Unless otherwise ordered by the court or stipulated to by the parties, all individuals providing supervised access must:

(A) Be 21 years of age or older;

(B) If transporting a child, have proof of minimum automobile insurance, possess a valid current driver's license, not have been convicted of or pled guilty to driving under the influence of alcohol, drugs or other intoxicating substances within the last five years, and utilize an approved child car seat and/or seat belt for the child as required by law;

(C) Have no current or past civil, criminal, or juvenile protection or restraining order against him or her regarding a child involved in the case or a party to the case;

(D) Have no current ex parte domestic violence protection order against him/her;

(E) Have no current or past domestic violence protection order against him/her entered at/after an adjudicatory hearing held after notice to him/her;

(F) Have no current or past criminal “no contact” order against him or her;

(G) Never have been a supervised party; and

(H) Communicate in a language that the non-custodial party and the child understand or have a neutral interpreter over the age of 18 present to assist with communication, including for the hearing-impaired.

(ii) In addition to the above, all professional providers must comply with the provisions of Idaho Court Administrative Rule 47 regarding Criminal History checks. A denial, either conditional or unconditional as defined by I.C.A.R. 47 precludes employment as a supervised access provider.

(g) Education and Training of Providers. When the court orders supervised access, each court must make available to the providers the terms and conditions of supervised access under subsections (n) and (o) and the legal responsibilities and obligations of a provider as provided in sections (p), (q) and (r). In addition, effective January 1, 2005, the professional provider of supervised access must have completed 13 hours of training in supervised access including the following topics:

(i) The role of a professional and therapeutic provider;

(ii) Child abuse reporting laws;

(iii) Record-keeping procedures;

(iv) Screening, monitoring, and termination of access;

(v) Developmental needs of children;

(vi) Legal responsibilities and obligations of a provider;

(vii) Cultural sensitivity;

(viii) Conflicts of interest;

(ix) Confidentiality requirements and limitations;

(x) Dynamics of domestic violence, child abuse, sexual abuse and substance abuse;

(xi) Techniques for dealing with high conflict or difficult situations;

(xii) Effects of separation, divorce, on children and their parents;

(xiii) Local court practices and relevant state law;

(xiv) Maintaining a neutral role; and

(xv) Ethical principles involved in supervision of access.

(h) Safety and Security Procedures. All providers must make reasonable efforts to ensure the health, safety and welfare of the child, custodial and non-custodial parties, and providers during supervised access. In addition, professional providers must do all of the following:

(i) Establish, with the assistance of the local law enforcement agency if possible, a written protocol that describes what emergency assistance and responses can be expected from the local police or sheriff's department. The protocol should specifically address procedures to follow in the event a child is abducted during the process of supervised access.

(ii) Establish and set forth in writing minimum safety and security procedures and inform the parties of these procedures prior to the commencement of supervised access;

(iii) Obtain prior to providing services:

(A) Copies of any protective orders and no contact orders;

(B) Current court orders pertaining to the child;

(D) In the case of a child's chronic health condition, an account of his or her health needs.

(iv) Conduct a comprehensive intake and screening to assess the nature and degree of risk for each case. The procedures for intake should include separate interviews with the parties before access begins. During the interview, the provider shall obtain identifying information of the parties and the child(ren) and explain the reasons for temporary suspension or termination of access as specified subsection(s) of this section. If the child is of sufficient age and capacity, the provider shall include the child in an age-appropriate orientation prior to the first supervised access. The provider has the discretion to conduct an orientation of the process with the child separate and apart from the parties;

(i) Ratio of Children to Provider. A professional provider may determine the appropriate ratio of children to provider for supervised access based on:

(i) The degree of risk present in each case;

(ii) The nature of supervision required in each case;

(iii) The number and ages of the children to be supervised during a visit;

(iv) The number of people having contact with the child during access;

(v) The duration and location of supervised access; and

(vi) The experience of the provider.

(j) Conflict of Interest--Non-professional Providers. When appointing a non-professional provider the court should evaluate the provider's ability to act independently of the supervised person and in a neutral and unbiased fashion.

(k) Conflict of Interest--Professional Providers. All professional providers must maintain an engaged but unbiased role. Generally, discussions between a provider and the parties outside the actual supervision situation should be limited to arranging access and providing for the safety of a child. Unless otherwise ordered by the court or stipulated to by the parties, professional providers shall not:

(i) Be financially dependent on the person being supervised party;

(ii) Be an employee of or work for the supervised party in a capacity other than providing supervision;

(iii) Be otherwise employed in another capacity in a case involving the same parties; or

(iv) Be a close relative of, or be involved in or have had an intimate relationship with, the supervised party.

(l) Maintenance and Disclosure of Records.

(i) The professional provider must keep, and it is recommended that all providers keep, a record for each case, including the following:

(A) A written record of each contact, including the date, time and duration of the contact;

(B) Who attended;

(D) Actions taken by the provider, including any interruptions, temporary suspension or termination, and reasons for these actions;

(E) An account of critical incidents, including physical or verbal altercations and threats;

(F) Violations of protective or court visitation/access orders;

(G) Any failure of the parties to comply with the terms and conditions of the supervised access order; and

(H) Any incidents of abuse.

(ii) Records and reports shall be limited to facts, observations and direct statements made by the parties and/or the children, except where a therapeutic provider has been authorized by the court to evaluate and make recommendations regarding the adult/child interactions. All contacts by the provider in person, in writing, or by telephone with any party, the children, the court, attorneys, mental health professionals, and referring agencies must be documented in the case file.

(iii) If ordered by the court, or requested by either party or the attorney for either party or the attorney for the child, a report about the supervised access must be produced and sent to all parties, their attorneys, the attorney for the child, and the court. Such reports shall not include recommendations regarding future access unless ordered by the court and submitted by a therapeutic provider.

(iv) Information gathered and observations made as a result of appointment as a provider shall not be disclosed to anyone except as required by law, court order, or upon consent of both the parties.

(m) Evidentiary Privilege. Communications between parties and providers of supervised access are not protected by any privilege that would not otherwise apply.

(n) Delineation of Terms and Conditions. The provider is responsible for following all of the terms and conditions of any supervised access order. The provider shall:

(i) Monitor conditions to reasonably ensure the health, safety and welfare of the child;

(ii) Follow the frequency and duration of the access as ordered by the court;

(iii) Remain neutral;

(iv) Insure that all contact between the child and the supervised party is within the provider's hearing and sight, and that discussions are audible to the provider;

(v) Communicate in a language that the child and non-custodial party understand;

(vi) Allow no derogatory comments about another party, his or her family, the caretaker, the child or the child's siblings;

(v)Allow no discussion of the court case or possible future outcomes;

(viii) Allow neither the provider nor the child to be used to gather information about another party or a caretaker, or to transmit documents, information, or personal possessions;

(ix) Allow no spanking, hitting, or threatening of the child;

(x) Allow no access to occur while the supervised party appears to be under the influence of alcohol or illegal drugs;

(xi) Allow no emotional, verbal, physical, or sexual abuse;

(xii) Insure that the parties follow any additional rules set forth by the provider or the court; and

(xiii) Allow no other person to have access, unless such access has been specifically approved by the court or by all parties in writing.

(o) Safety Considerations for Cases Involving Sexual Abuse. All providers must adhere to the following additional terms and conditions in cases involving allegations of sexual abuse:

(i) Allow no exchanges of gifts, money or cards;

(ii) Allow no photographing, audio taping, or videotaping of the child;

(iii) Allow no physical contact with the child that appears inappropriate or sexualized, such as lap sitting, hair combing, stroking, hand holding, prolonged hugging, wrestling, tickling, horse-playing, changing diapers or clothes, or accompanying the child to the bathroom;

(iv) Allow no whispering, passing notes, hand signals, or body signals that appear inappropriate or sexualized; and

(v) Allow no supervised access in the location where the alleged sexual abuse occurred.

(p) Responsibilities and Obligations of a Provider. All providers of supervised access must:

(i) Inform the parties before commencement of supervised access that while communications are confidential, no privilege exists;

(ii) Report suspected child abuse to the appropriate agency, as required by law, and inform the parties of the provider's obligation to make such reports;

(iii) Comply with and enforce the terms of this rule and the court's order; and

(iv) Suspend or terminate access as appropriate under subsection (s).

(q) Additional Responsibilities of Professional Providers. In addition to the preceding responsibilities and obligations set forth under subsection (p), the professional provider must:

(i) Prepare a written contract that informs each party of the terms and conditions of supervised access and that is signed by all parties before the commencement of supervised access;

(ii) Review custody and visitation/access orders relevant to the supervised access;

(iii) Implement an intake and screening procedure under subsection (h)(iii);

(iv) Develop a written protocol for suspension or termination of access services; and

(v) Provide general information to the parties about how they may be referred back to the court when access has been suspended or terminated.

(r) Discharge of the Supervisor.

(i) If a previously named provider cannot accept the appointment for whatever reason, that provider shall within five days of the notice of appointment, or receipt of the notice to the supervisor, or order, file a declination of appointment. A provider need not give a specific reason for declining an appointment to provide supervised access.

(ii) If at any time after the acceptance of the appointment or before providing supervised access services the provider is no longer willing or able to act as a supervisor, the provider shall notify the court by filing a written resignation with the court and mailing a copy to the parties and their attorneys.

(iii) Upon motion of a party, or the court on its own motion, a supervisor may be removed for failure or inability to comply with this rule, the conditions of appointment or because the services are no longer needed.

(s) Temporary Suspension or Termination of Supervised Access. All providers must make reasonable efforts to provide a safe environment for all participants. Access may be temporarily interrupted, rescheduled at a later date, or terminated if a provider determines that the rules for the access have been violated; the child has become acutely distressed; or the health, safety or welfare of the child or provider is at risk. When suspending or terminating access, providers shall:

(i) Notify the court and state the reasons for suspension or termination of supervised access in writing, and provide copies to all parties, their attorneys, and any attorney for the child; and

(ii) Record all interruptions or terminations of access in their case file or, in the case of non-professional providers inform the court of such interruptions or terminations of access.

COMMENTS

This Rule is intended to establish the framework for court-ordered supervised access to children. Each court is encouraged to make available to all providers of supervised access to children informational materials about the role of the provider, the terms and conditions of supervised access and the legal responsibilities and obligations of a provider. In addition to the extent dictated by local needs and conditions, Courts may develop local rules not inconsistent with this rule to govern supervised access to children.

Courts should consider the following best practices in ordering supervised access:

1. Generally it is not in the best interests of children to have “supervised exchanges/transfers” occur at law enforcement agencies. Courts should look for other neutral locations for exchanges/transfers.

2. At the current time, the rule does not impose requirements for the amount of training or for the timing of training. Judges should ensure that professional providers' training is recent and relevant to the role they will play in any particular case.

3. No new evidentiary privilege is created by this rule. Communications of professional providers may be privileged under other provisions of Idaho law. Even where no privilege applies, providers should maintain appropriate confidentiality regarding the case except when ordered by the court, subpoenaed to produce records or testify in court, requested by a mediator or evaluator in conjunction with a court-ordered mediation, investigation or evaluation, required by child protective services, requested by law enforcement or necessary to report suspected child abuse to the appropriate agency as required by law.

(p) Informal Custody Trial.

(1) An Informal Custody Trial is an optional alternative trial procedure that is voluntarily agreed to by the parties, counsel and the court to try child custody and child support issues. The model requires that the application of the Idaho Rules of Evidence and the normal question and answer manner of trial be waived. Once the waiver is obtained the matter proceeds to trial by consent as follows:

a. The moving party is allowed to speak to the court under oath as to his or her desires as to child custody and child support determination. The party is not questioned by counsel, but may be questioned by the court to develop evidence required by the Idaho Child Support Guidelines and child custody evidence required by Idaho Code § 32-717.

b. The court then asks counsel for that party, if any, if there are any other areas the attorney wants the court to inquire about. If there are any, the court does so.

c. The process is then repeated for the other party.

d. If there is a Guardian ad Litem or other expert, the expert's report is entered into evidence as the court's exhibit. If either party desires, the expert is sworn and subjected to questioning by counsel, parties or the court.

e. The parties may present any documents they want the court to consider. The court shall determine what weight, if any, to give each document. The court may order the record to be supplemented.

f. The parties are then offered the opportunity to respond briefly to the comments of the other party.

g. Counsel or self-represented parties are offered the opportunity to make legal argument.

h. At the conclusion of the case, the court will make a decision.

(2) Consent and Waiver. The consent to and waiver to the Informal Custody Trial shall be given verbally on the record under oath or in writing on a form adopted by the Supreme Court.

[FN1] So in original. The semicolon should probably not appear.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.