New Rules Make it Easier for Non-Lawyers In Family Court
In 2010, after the California Judicial Council created the Family Law Task Force, several amendments to the laws relating to the dissolution of marriage, child custody and support issues were passed.
These changes in the law were designed to help non-lawyers follow the rules and ensure that a litigant, whether represented to not, would be afforded satisfactory opportunity to present his or her case to the court. Why the changes? The answer is the Elkins case. Jeffrey Elkins was the CEO of a telephone company. While he was a successful businessman his attempts to represent himself in court proved to be disastrous. In less than 5 minutes in a Contra Costa family law court, Elkins lost nearly all of the property that he and his ex-wife Marilyn had accumulated during 21 years of marriage. What happened? He failed to follow the local rules and the court’s scheduling order. As a result the court barred 34 of the 36 exhibits he hoped to introduce to help him present his case. Without a word of testimony from Mr. Elkins, the trial court proceeded by quasi-default awarding Marilyn everything that her counsel had requested.
Eventually the case was appealed and the California Supreme Court held that the superior court had violated the hearsay rule by admitting written declarations in lieu of testimony. But the Elkins case went much further. The chief justice of the court at the time, Robert M. George, concluded the opinion by stating that courts must “earn the public’s trust.”
Based on a footnote in the case a special task force was created to make recommendations to the legislature on changes to the law. The report of the judicial council family law task force was issued in early 2010. It had 21 broad and 117 specific recommendations.
The California Assembly quickly passed the major recommendations into law. One of the most significant reforms related to the Elkins case itself. Ab939, enacted last September requires live testimony at the hearing of an Order to Show Cause or notice of motion unless the parties opt out. Under an accompanying revised rule that took effect last month written declarations are limited to 10 pages and reply declarations, no more than 5. This is clearly good news for litigants.
Under the new rules, after scheduling the Order to Show Cause the court must receive any live and admissible testimony that is relevant and within the scope of the hearing, unless the parties agree that no live testimony is needed or the court makes a specific finding of good cause to refuse live testimony. Since the court may not have sufficient time for an evidentiary hearing or in situations where the parties may not be fully prepared for hearing , Family Code § 217 allows theCourt to make temporary orders until the full evidentiary hearing can occur.
Although I would never advise an individual of means to represent themselves in a dissolution proceeding (or a paternity proceeding) the fact is that many persons choose to represent themselves either due to the financial issues or for emotional reasons. Limiting the length of declarations makes it easier for lawyers and self-represented litigants to provide declarations. Requiring live testimony allows those litigants without the benefit of a lawyer or much drafting skill to still attempt to present their case.
Also enacted in 2010, California Family code section 3042(c) allows children age 14 and older to testify in custody and visitation proceedings beginning on January 1, 2012. The bill allows children to testify by speaking in a judge’s chambers or otherwise voice their wishes on custody and visitation. The sole power to determine whether it is in the child’s best interest to express a preference to the court resides with the court not with either party. However if the court declined to call the child’s as a witness, it must provide an alternative means of obtaining information regarding a child ‘s custody and visitation preferences.
These changes will help de-mystify the family law proceedings. Unfortunately, the changes come at a time of dire financial distress on the part of the courts.
Depending on where one lives the court backlog is either significant or enormous. Los Angeles superior courts have done an admirable job of preparing for the budget shortfalls over the past 3 years. Former presiding judge, Tim McCoy, refused to hire new persons to fill positions vacated by retiring employees and employees who left the county voluntarily. Many courtrooms are dark one or more days of the week. A pilot program in the civil departments has certain judges working one day a week without a staff. Nevertheless, calendaring issues prevail. It’s not unusual to have a trial scheduled 9 months out from the final status conference. The budge shortfalls influence all areas of the court including the family law departments. No matter how efficient one makes the family law statutes and rules the courts’ lack of funding will continue to be a serious detriment for litigants. There is a saying in the law that justice delayed is justice denied, and in the area of family law that saying is true.
And all the good intentions in Sacramento will ever change the hard fact that day in and day out litigants represented by experienced divorce lawyers achieve more of what they desire than litigants who attempt to represent themselves.