The changing landscape of Family Law under Elkins legislation

DONALD F. CONVISER, Certified Family Law Specialist, owner of Warner Center Law Offices in the Warner Center area of Woodland Hills, California, in the San Fernando Valley, representing clients in the Courts of Los Angeles and Ventura Counties for over 35 years, writes this blog to educate the reader about some of the changes in the way that Family Courts will handle cases, beginning in January, 2011, as a result of legislation which followed recommendations of the Elkins Task Force.

In 2007, the California Supreme Court rendered an important opinion in ELKINS v. SUPERIOR COURT, 41 Cal.4th 1337, a Contra Costa county case which attracted participation of Amicus Curiae, including the Association of Certified Family Specialists and the Contra Costa Bar Association. The husband in the ELKINS case was in Pro Per (i.e., he represented himself) during the divorce proceedings. A local superior court rule and a trial scheduling order in that case provided that in dissolution (divorce) trials, parties must present their case by means of written declarations. The husband, not being versed in the law, was unable to establish the evidentiary foundation for all but two of his 36 exhibits, and the trial proceeded "quasi by default", to the husband's prejudice.

On appeal, whereas the Supreme Court was sympathetic to the need of trial courts to process their heavy case loads of divorce cases in a timely manner, it held that the trial court deprived Mr. ELKINS of due process protections, and that same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings, and it remanded the case to the trial court to allow live testimony at trial.

Whereas the ELKINS case involved "trial by declaration", for many years, Family Law courts all over California have required Motions and Order to Show Cause [OSC] proceedings, especially those concerning economic issues (such as Child Support, Spousal Support and Attorney's fees) to proceed by way of declaration (as opposed to live testimony) pursuant to REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479, In re Marriage of STEVENOT (1984) 154 Cal.App.3d 1051, CODE OF CIVIL PROCEDURE Sections 2009 and 2015.5, and CALIFORNIA RULES OF COURT Rule 5.118.

As a result of the ELKINS case and its ramifications, an ELKINS Task Force was appointed to review not only the way that the ELKINS trial was handled, but to review all family law proceedings, and to make recommendations to the legislature regarding changes it felt that would be appropriate to make in the way all Family Law cases should be handled.

As a result of the ELKINS Task Force recommendations, the leglislature enacted AB 939 and AB 1050, which will change the landscape of Family Law proceedings in California. AB 939 states, among other things, that access to justice requires that parties be able to appropriately address the court and present their cases. It adds Section 217 to the Family Code (effective January 1, 2011), providing in relevant part that a hearing on any Order to Show Cause or Notice of Motion, absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons on the record or in writing for its finding), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing, and the court may ask questions of the parties.

This writer deems the addition of FAMILY CODE Section 217 to be the most significant result of the ELKINS Task Force Recommendations (although others are significant as well). It will enable judicial officers to perceive and evaluate the credibility of witnesses' live testimony, instead of ruling on the quality and skill of a lawyer's writings. How the Courts will afford to make time for live testimony in this era of economic stress and downsizing is a problem that the Courts will have to deal with, but the need for fairness and justice in hearings has now been addressed and legislated. 2011 will bring the dawn of a season of fairer hearings.

Some other significant results of AB 939 included the amendment of various attorney's fee provisions(Family Code Sections 2030, 2032, and 3121) to level the playing field, and amendment of Family Code Section 2330.3 endeavoring to keep a case with the same judicial officer through final judgment and requiring the Judicial Council to adopt a standard of judicial administration prescribing a minimum length of assignment of a judicial office to a Family Law assignment (in an effort to avoid the problems caused of late by the revolving doors in the Family Law courts, which more often than not resulted in a Judicial Officer's ignorance of prior proceedings in a case to which which he/she was assigned, mid-stream).

AB 1050 amended FAMILY CODE Section 3042 to require the family court to consider and give due weight to the child in making an order granting or modifying custody or visitation if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation, and to require the court to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the Court determines that doing so is not in the child's best interests.

The ELKINS Legislation will likely result in overcrowded court dockets, delays before hearings, and two hearings on Motions or OSCs (the initial hearing to determine the amount of time needed for an Evidentiary Hearing and to set the Evidentiary Hearing, the 2nd hearing being the Evidentiary Hearing based on live testimony), but it will remedy a long standing problem - Family Law trial courts have, for too long, based their OSC and Motion rulings on attorney-drafted paperwork, rather than live testimony in proceedings where the Judicial Officer would be able to evaluate the credibility of witnesses. That is going to change under the new ELKINS legislation.