California Judicial Council has accepted the Elkins task force report containing 117 recommendations for ensuring that family law litigants are dealt with fairly, efficiently, and with due process. This report recommends the establishment of a committee to implement those 117 recommendations. On April 23, 2010, Judicial Council accepted report of Elkins Family Law Task Force based on a comprehensive two-year study of California Family Law trial courts, rules, policies and procedures. The Task Force engaged in extensive outreach to California Family Law judicial officers, court staff, private and public attorneys, and Family Law litigants, seeking their views on the current state of the Family Law courts and their suggestions for improvements. It received input from e-mail, letters, surveys, focus groups, and testimony at meetings and public hearings.
After releasing its draft recommendations on October 1, 2009, the Task Force received further comments and suggestions. Now, it has presented the Judicial Council with its finalized recommendations, which Judicial Council has accepted. Highlights of those recommendations, which Task Force divided into five categories are as follows:
1. Efficient and Effective Procedures to Help Ensure Justice, Fairness, Due Process, and Safety.
Trial Courts should adopt case-flow management procedures that establish family-centered case resolution processes tailored to the needs of each family. These procedures would let parties know the next steps needed to successfully move their cases to a timely resolution and will permit parties to explore reconciliation, collaborative proceedings, or other dispute-resolving methods.
Parties should be able to provide live testimony on substantive issues to judicial officers at hearings on motions and Order to Show Causes, absent a finding of good cause to prohibit it.
Family Law rules should be revised to be more comprehensive and provide greater statewide uniformity, should include effective local practices that can be implemented statewide; local rules should neither address nor be inconsistent with procedures covered by statute or California Rules of Court.
Judicial Council should review all Family Law forms and simplify them as much as possible and should review local forms to determine which might be adapted for statewide use (local forms may not conflict with Judicial Council forms). Summary divorce and other procedures for uncontested cases should be simplified. Forms should be translated into multiple languages.
Adopt efficient, uniform statewide procedure to process default and uncontested judgments to make it easier for litigants to obtain default judgments, while reducing workload of court staff processing them.
Trials and long-cause hearings should be heard until completed without interruption by other trials.
Domestic violence procedures in Family Law court should permit parties to obtain custody, visitation, and child-support orders that stay in effect after protective orders expire. Parties who are not married should be permitted to establish uncontested parentage orders without filing separate parentage action. Family Law courts should have procedures in place for mediation and other services that allow court staff to meet with parties separately in cases involving domestic violence allegations.
Judicial Council should assess adequacy of existing civil remedies for perjury. If necessary, it should seek legislation to expand type of sanctions awardable to include, for example, restitution or fines in addition to attorney’s fees; issue preclusion and evidentiary sanctions, to the extent not already permitted, could be explicitly made available as sanctions. Civil sanctions for perjury could also be extended to case types beyond currently-limited scenarios of false declarations of disclosure, child support, and false child-abuse allegations. Judicial Council might also consider whether expansion of civil remedies for perjury should apply to all civil cases, not just Family Law.
2. More Effective Child Custody Procedures To Improve Court Experience for Families and Children.
Parents should be given meaningful opportunity to respond to information provided to Trial Court by mediators, evaluators and investigators. Child-custody mediation should be adequately funded to give mediators enough time to mediate disputes. Roles of child-custody evaluators and investigators should be better defined. Pilot projects should be established that would promote confidential mediation initially and would test best ways to assist courts in getting needed information about families, if parties fail to reach an agreement.
Trial courts should determine on case-by-case basis whether and in what manner child testifies, taking into account Trial Court’s need to hear from the child in order to make an informed decision, its obligation to protect children from any harm that may result from their participation, and child’s wishes. Trial Court that appoints counsel for child should clearly define counsel’s role and make sure that he or she acts within its scope. Minor’s counsel should not assume evaluator’s role, make recommendations, file report, or testify. Trial Court must ensure that counsel meets minimum requirements, should monitor fees billed by counsel, and should cap fees as appropriate.
Child Welfare Services should conduct initial investigation of all allegations of child abuse and neglect, whether or not either parent has filed a Family Law action. Pilot projects should be established to study best ways to handle cases involving child-abuse allegations.
Task Force also recommends improving meaningful access to justice for all litigants by increasing availability of legal representation (including limited representation), self-help services, legal service programs and pro bono panels. It also recommends that Trial Courts consider making early needs-based attorney fee orders rather than waiting until trial. Additional recommendations include establishing litigant education programs, expanding availability of mediation and settlement programs, improving availability of interpreters and services for hearing impaired litigants, and designing future courthouses to be more responsive to the needs of Family Law litigants and persons with disabilities.
In addition, Task Force recommends enhancing status of and respect for Family Law litigants and Family Law process through judicial leadership. That leadership should include efforts to ensure that Family Law courts receive sufficient resources and well-qualified judges to give families time and attention they deserve to resolve their cases in a timely fashion. Family Law judicial officers should be given better education and training and Trial Court should set up more public information and outreach designed to educate the public on the role of Family Law courts, its processes and its services. The Task Force recognizes that current budget constraints may delay full implementation of its recommendations, but emphasizes that they should be prepared for implementation when situation eases.
You may access full text of report at: www.courtinfo.ca.gov/jc/documents/reports/20100423itemj.pdf