Fathers & Families Speaks to Elkins Family Law Task Force, Makes Recommendations


“The families that judges see in family court are already fractured, but still capable of inflicting pain on one another and often use the courts to do so…They make navigating the family law system so difficult that even a highly functional person becomes stressed.’ — Honorable Donna Petre, Sacramento Bee, 2000

Family law takes up more court calendar time than any other form of law in California, yet it receives the least amount of funding. Moreover, the public’s trust and confidence in the family court system is lower than that of any other area of law the judicial system handles.

The Elkins Family Law Task Force is conducting a comprehensive review of family law proceedings and will recommend to the Judicial Council of California proposals that increase access to justice for all family law litigants.

The Elkins Family Law Task Force recently issued its draft recommendations and Fathers & Families submitted its official comments in response.  Our comments, which were submitted by F & F Board Member Elizabeth Barton, PhD of the University of California at Irvine, are here.

Fathers & Families’ legislative representative Michael Robinson appeared at the Task Force’s two-day meeting February 1 & 2, 2010 in the Judicial Council Conference Center of the Administrative Office of the Courts in San Francisco. Below is Robinson’s statement to the Task Force.

Madam Chair and Distinguished Members of the Task Force: I am Michael Robinson and I”ve worked as a legislative advocate and policy consultant in Sacramento since the late 1990s. I am here today on behalf of Fathers & Families (F&F), a national organization based in Boston which has offices in Los Angeles and Sacramento.

Before I get started, I want to thank Chief Justice Ronald George for calling for the formation of this Task Force and I also want to thank all Task Force members for the due diligence that has led to the many well-considered recommendations.

To this end, in general principle F&F agrees with the draft recommendations the Task Force has made so far. We are concerned, however, that many of the draft recommendations are lacking in substantive detail. Nevertheless, we will withhold further opinion until we see the final report, which we hope will contain more detailed and specific language that will become actual legislative draft proposals.

Our comments to the Task Force were submitted by the deadline along with a cover letter by Elizabeth Barton, PhD from the University of California at Irvine, who is a member of Fathers & Families” Board.

Over the last nearly 10 years I often recall two very fitting quotes by the Hon. Donna Petre that appeared in the Sacramento Bee in 2000 after she had received her award for implementing a case managing process in her court. The quotes are:

“The families that judges see in family court are already fractured, but still capable of inflicting pain on one another and often use the courts to do so.’


“They make navigating the family law system so difficult that even a highly functional person becomes stressed.’

It is encouraging that some of the Task Force”s recommendations place a stronger emphasis in this area of case management, including improving case data tracking.

Other recommendations go to improving mediation, ADR, and parent resources to help reduce conflict. We believe that the more that is done to reduce parental conflict at the outset, the less unproductive adversarial litigation we”ll have in custody and parenting time cases.

In 2006, I played a major role in Dymally’s AB 402. This bill codified collaborative practice into the family codes. We believe that many of the principles that govern collaborative practice substantially help reduce conflict. They produce a positive outcome in a non-adversarial manner for all parties including the children. Encouraging mentoring of collaborative practice for practitioners and making parties aware of this process will help.

We also believe that better parental education is necessary on the harmful effects that high conflict has on children, and that parental education on this subject should be a part of all mediation orientations.

In our recommendations on the issue of custody mediation, we submitted two additional documents that we feel should be a guiding principle for all parents, mediators and the court from the start of a custody/parenting time case. The first I”d like to mention is “A Child’s Bill of Rights’ that was written by the Wisconsin Supreme Court, and the second is “A Parents’ Bill of Rights’ that was written by Dr. Frank Leek. I”ve also included them with my prepared comments.

We are concerned that the recommendations do not include anything on enforcing custody/parenting time orders. We hope the Task Force also considers this issue.

On the recommendation to enforce perjury, we certainly agree that there is a need to take this issue seriously, and it is long overdue. One area is the problem of false allegations to obtain TROs and DVPOs. There are also problems with evidence standards. They are confusing and all over the map, all depending on what code sections you look at, and in many ways they may be violating representation standards and due process. I have attached a paper that was written by an attorney who works with our organization. This paper lists all of the code sections and has recommended markups, and I would be more than happy to provide an electronic copy that has additional pop up notes.

FLEXCOM even expressed concerns in one of their Newsletters in 2005, following the passage of AB 99, Cohn. The Section in part wrote:

“The primary concern of the Family Law section of the State Bar was that these protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody and/or property litigation and in cases involving the right to receive spousal support.

“While clearly these protective orders are necessary in egregious cases of abuse, it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes rather than from the true need to be protected from a genuine abusive batterer. The problem only increases if an accused person cannot afford an attorney in a family law matter.”

We agree with FLEXCOM and share their concerns. We would also suggest that the Task Force also recommend adopting legislation similar to a bill that is now before the Maryland Legislature, House Bill 48. I”ve attached copies of the bill text and the judiciary analysis. The bill requires that the respondent be advised on how a person could be affected if they voluntarily agree to a restraining order, and what rights they are waiving.

Finally, the Task Force advises that some of the recommendations will require additional funding and/or moving funding around. I have complained for many years about the need to better fund our family law courts, and I”m on the record on this issue with legislators and with legislative liaisons for AOC. The current economy is not making matters any better.

We appreciate that in the recommendations the Task Force mentions the need to minimize litigant needs to take time off of work. One thing that is lost is just how financially devastating family law is to families, and it does not stop there. Family legal woes are also the number one cause of lost productivity in our workforce, surpassing drug and alcohol problems. This is affecting our state’s economy.

According to at least two national studies conducted for insurance groups, the problem is significant. Here are just a few of the findings:

To resolve their Family Legal Life Events, employees spent an average of:

• 7 days away from work per year,
• Plus 9 hours of lost time, equating to $1,625 of annual cost to the
employer per employee (based on the mean sample $50,000 salary).

Other findings:

• By far, the most time taken off is for family-related Legal Events
• Credit and Bankruptcy problems are often the result of family law

In closing, we can do better, and we must. Creating fair policy and stability for California families and children and restoring confidence in our family courts needs to be a top priority. The problems are so widespread that they not only affect families and children, but our state”s businesses and economy as well.

I thank you for this time and opportunity. I hope that the Task Force finds our comments and recommendations productive and useful.

To read the attachments to our report, which include the markups of the evidence standards related to domestic violence in the family law codes, as well as the Maryland bill referenced in Robinson’s comments, please click here.

Fathers & Families is the only family court reform organization with a fulltime lobbyist working inside the capitol of California or any other major state. This important work costs money–please support it by giving here.

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