When Parent Education is ordered, both parents must attend. If litigants have previously attended Parent Education, the requirement may be waived by FCS, the judge, or the commissioner. Parent Education may be completed at another agency if approved in advance by the Family Court Services Director. Parent Education must be completed within 45 days of the Court’s referral.
Court ordered referrals for mediation are made by a judge or a commissioner and may be based on a motion, petition, letter, or at a hearing. When mediation is ordered, both parents must participate. A waiver of mediation pursuant to statutory criteria may be requested from the referring judge or commissioner. There is no cost for the initial mediation session, but the parties will be required to pay a fee for repeat or extended sessions. Parties may also arrange for private mediation from a third party provider, as permitted by statute. Mediation must be completed within 45 days from the assignment date of Parent Education (60 days in families with domestic violence that has been identified by the Court) of the Court’s referral.
Commissioners will evaluate post-judgment verified petitions or motions with supporting affidavits and make the determination as to whether a substantial change in circumstances is set forth in the submission. If they determine it does not, they will dismiss the petition or motion. Parties may file for a de novo hearing with the assigned judge. If the verified petition or motion is not dismissed, the matter will be referred for mediation with FCS or set for a status conference in an attempt to resolve the issue(s) or define the contested issue(s). At a status conference, a determination may be made as to whether a GAL is required or whether mediation is appropriate. The matter may be scheduled for a contested hearing or for some other appropriate action. Mediation referrals are docketed by the commissioner center staff.
Judges who are directly contacted by the parties and choose not to route the motion through the commissioner center may evaluate post-judgment verified petitions or motions with supporting affidavits and make the determination as to whether a substantial change in circumstances is set forth in the submission. When they determine it does not, they will dismiss the petition or motion. If the verified petition or motion is not dismissed, the matter will be referred for mediation with FCS or set for a status conference. The referral to FCS is docketed by the branch staff.
When the FCS counselor receives a mediation referral, they or a member of the staff will email notice to the branch clerk. The clerk may do an administrative file review. A mediation-to-study referral will not be made automatically. A study will only be ordered if mediation has failed or has been waived.
FCS only provides mediation services for parties to review and discuss potential agreements to resolve the pending disputes. FCS does not provide mediation for temporary orders.
If the parties reach an agreement or a partial agreement in mediation at FCS, the counselor with whom the mediation occurred shall circulate the agreement to the parties and attorneys of record. If there are no objections or modifications, the parties shall sign the certification of mediation and return it to FCS in the enclosed envelope. Failure to do so within 14 days will result in a status conference before the Court. The agreement is then forwarded to the assigned judge. If there are no objections to the mediated agreement, the Court may enter an order incorporating the terms of the agreement as a final order of the matters set forth in the mediated agreement. In pending, pre-judgment divorce cases, the judge may, but is not required to, schedule a hearing regarding the agreement prior to adopting it as a final order.
If mediation is unsuccessful, the counselor will notify the referring Court official, and all parties, indicating no further action will be taken unless directed by the Court. FCS will also advise if a failed mediation was the result of one or both parties lack of participation. Unless the assigned judge requires the matter be returned after a commissioner receives notification of an unsuccessful mediation, the commissioner will schedule a status conference to hear from the parties, attempt to resolve the matter or narrow the disputed issues, and enter other appropriate orders. If the failed mediation is returned to the commissioner and is not resolved at the status conference, it will be forwarded to the assigned judge with a brief synopsis articulating resolved issues and those still outstanding. In pending divorce actions forwarded to the court, it is not necessary to conduct a status conference. The referral may go forward to FCS to conduct a study. Commissioners may also make a referral to FCS and advice the court of such.
After receiving notification of an unsuccessful mediation from either FCS or a Court Commissioner, the assigned judge will set a status conference. At the status conference, the Court will determine whether a GAL should be appointed or a study should be ordered. If the case is to be referred for a study, the judge may choose a full study or a Brief Focused Assessment (BFA), depending on the issues brought forth. If the referral is unclear, the Court Counselor may request clarification from the FCS Director or the assigned judge. These requests will be copied to all parties. If during the course of a BFA the counselor identifies significant concerns outside of the referral, they will promptly inform the judge, who may choose to modify the referral.
When the study is assigned, the FCS director will notify the branch by email and the parties by mail noting the date FCS recommendations are due. Counselors will include in their recommendations the dates of the case referral, assignment, and completion of the report. Studies are to be completed within 90 days (120 days in families with domestic violence that has been identified by the Court), unless the counselor has received an extension. Brief Focused Assessment should be completed in 60 days from the day of assignment, unless there is domestic violence or the court extends the time. All study referrals will be accompanied by a motion.
The following matters will not be referred for a study: guardianship disputes, contempt and enforcement issues, monitoring of Court Orders, disputes regarding transportation or time and place of transitions, minimal changes to the schedules, vacation and holiday schedules, disputes regarding choice of schools or extracurricular activities, cases where the parents continue to reside in the same residence, and cases where parties have jointly retained a private practitioner to conduct a study concerning the pending motion petition. Cases in which both parents live outside of Dane County will be closely evaluated by the judge, commissioner, and Director of FCS to determine whether it is appropriate for a study referral to FCS. Recommendations to the Court should be in letter format using statutory criteria as a guideline and should explain the reasons for the recommendation. The counselor will not be expected to prepare any further report or updated recommendation, except when directed to do so by the assigned judge upon good cause shown.
Inquiries and comments between counselors and judges/commissioners about the merits of a case shall be in writing with copies to all interested parties. Parties, attorneys, the Guardians ad Litem and Family Court Counselors may communicate with each other for the purpose of exchanging information and explaining their respective positions regarding the issues involved in the case. All written materials sent by parties and attorneys must be copied by the sender to all other parties and attorneys, with the exception of the Family Study Questionnaire and other initial paperwork sent out by the FCS office. Other substantive information received by the counselor will be available for review in the file. Communication between counselors and outside evaluators should be in writing with copies provided to all parties or orally with all the parties and counsel.
If during the course of the study process, the parties reach an agreement on the outstanding issues, the counselor will prepare a document reflecting that agreement. The document will be forwarded to the court for review and further order. No waiting period or certification form will accompany the document as is done in mediated agreements.
After failure to appear at Parent Education, a mediation or a study appointment, FCS shall send notice of a second appointment. This notice will advise the party (parties) that failure to appear on the new date could result in either the motion being dismissed or granted, depending on which party failed to appear, petitioner or respondent. Notification will be sent to the referring Court official when a second appointment is missed.
Failure of the non-moving party to attend Parent Education or mediation or to comply with the directives of FCS or the Court during the course of the study will not delay the initiation or completion of a study by FCS. Failure to comply may result in additional costs and fees to be assessed by the Court.
A party and/or attorney of record may request access to the Family Court Services file regarding their case once the study is completed. That request should be made to the counselor in charge or their delegate, who will prepare the file and make arrangements for its review. Each person reviewing the FCS file must sign a FCS Non-Dissemination Agreement (NDA), violation of which is punishable by contempt or other sanctions imposed by the court. The file review shall occur within five business days. If the file needs to be reviewed during the time the study is being conducted, the request should be made to the assigned judge. The file will not be available five business days before trial.
Currently, portions of the case file are automatically sequestered and a specific request must be made to the assigned judge to review these documents. Documents that have been sequestered will be identified in the file by a check sheet and may include financial information, Department of Human Services records, medical, mental health, and AODA records. The parties may request additional information in the file be sealed by making a request to the assigned judge. Sequestered documents may be viewed but not copied.
FCS will charge a reasonable fee for copying non-sequestered records.
Once the case is closed in our office, permission from the assigned judge is required to access the file.
NO further distribution of viewed or copied material is permitted.
The responsibility for fees shall be set by FCS according to the fee schedule established by Dane County ordinance. Parties must pay fees or obtain a fee waiver within the time period set by FCS. Any party may seek a fee review by requesting a Judicial Review Form from the FCS office or the Court Commissioner Center. That form and the accompanying documentation should be sent directly to the Court Commissioner Center within 15 days of being notified of responsibility for payment. Failure to pay a required fee will result in a fee payment hearing before the commissioner.
No media of any kind may be used in the FCS office to record, capture, copy, or photograph any meeting, mediation or study session, person or document. All electronic media (cell phones, iPhones, etc.) equipment must be turned off upon arrival at the FCS office.
Rule Date: 4/15/2018
