Recent Posts in New Legislation and Statutes Category

• Rule 5.93 relating to attorney fee and cost applications, which identifies the steps for a litigant or court to take in requesting, responding to a request for, and awarding fees and costs based upon financial need;

• Approve optional form FL-157, Spousal or Partner Support Declaration Attachment, for litigants to use, as an attachment to the Request for Attorney's Fees and Costs Attachment (form FL-319), Declaration for Default or Uncontested Judgment (form FL-170), Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301) to request that the court award, modify a request, or deny a request for spousal or domestic partner support and to provide supporting facts that address the issuesidentified in Family Code section 4320, which are also required in a request for attorney's fees and costs;

• Approve optional form FL-158, Supporting Declaration for Attorney's Fees and Costs Attachment , for litigants to use, as an attachment to Request for Attorney's Fees and Costs Attachment (form FL-319) or Responsive Declaration to Order to Show Cause or Notice of Motion (form FL-320), to provide the court with additional background information either in support of or in opposition to a request for needs-based attorney's fees and costs, such as any history of child support, spousal or partner support, or family support orders;

• Approve optional form FL-319, Request for Attorney's Fees and Costs Attachment, for litigants to use, as an attachment to the Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301), to request that the court award needs-based attorney's fees and costs;

• Approve optional form FL -346 Attorney's Fees and Costs Order Attachment , for the court to use, as an attachment to Findings and Order After Hearing (form FL-340), Judgment (form FL-180), or Judgment (Uniform Parentage-Custody and Support) (form FL-250), to identify court findings and orders with respect to needs-based attorney's fees and costs; and

• Revise mandatory form FL-340, Findings and Order After Hearing , to improve organization and numbering, add clarifying language in item 1, add a reference to "parenting time" in item 2, add "Other" check boxes in items 2-6, add a check box for the court to attach new form FL-346 (see item 5 of this recommendation) in item 6, and add a check box for the court to order a continuance in item 9.

• Facilitating access to counsel by parties early on in the proceedings should be encouraged, and attorney fee awards help to accomplish this.  This is because cases are more likely to settle when people begin with a parity of access to resources, and settlement is always the ultimate goal.  FC §2030(a). 

• Courts must now make findings on whether an award for attorney fees and costs is appropriate, including based upon the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties.  FC §2030(b).  This revision directs trial courts to apply a variation of the disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d 1213, an appellate decision that some trial courts had ignored.  Relative access measured in terms of such disparity is now key.  "Disparity" implies 'a great distance or gap.'

• The California Judicial Council is directed, by January 1, 2012, to promulgate and adopt state-wide court rules in order to implement this directive in terms of what information is to be submitted to court's to support attorney fee requests.

From an experienced family lawyer's point of view, my take on this revision is that its greatest value is in telling family court judges that attorney fee awards in appropriate cases are to be the standard and not the exception.  I suspect, however, that judges and commissioners will remain overly conservative.

From a family sciences point of view I believe it is a significant improvement in the law if we are to equalize power between spouses and, frankly, genders.  More often than not women have been on the losing side of the attorney fee question in the sense that they have not controlled community or other resources to the same extent, and in the same manner, as many of their husbands.  I think that it will advance woman's rights in family law litigation.  

I do not want to overstate the power of this revision.  It is a move in the right direction, but nonetheless something of a baby step.  We will await appellate court pronouncements as to what standards family courts should apply as trial courts are reversed for being too timid or parsimonious, or even too generous.  The California Judicial Council is given to 2012 to propose state wide guidelines that will give direction to courts, and that may help to foster uniformity between different venues, in coming years.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), 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.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

• Will it be useful to the court to permit questioning of this child?
• What will be the risks and benefits to a particular child of being permitted to testify in favor or against a parent?
• How shall testimony occur?  Will it be allowed in open court, or in the judge's chambers? 
• Will there be uniformity between jurists or branches or counties in terms of court policies, or will it just be every department decides for itself how and what rules apply?
• Who besides the judge will be allowed to ask questions of the child?  This includes questioning outside the court proceeding, say when a third party is appointed to obtain the information for the court.
• What type of cross-examination will be permitted, since cross-examination is essential to assuring due process within the adversary court setting by testing the credibility and basis for testimony?
• Will any safety measures be adopted, and will there be any sensitivity to the potential consequences to children once kids are drawn into testifying, since they can't possibly have any understanding of how such testimony will affect their parental relationships with the nonfavored parent?
• Should different standards be applied in deciding to allow testimony from children about their parental preference when those requests are made after therapist based or similar recommendations come out and disfavor a party, as opposed to before they recommendations are known?  After all, what is to stop every disgruntled parent from demanding that their child state their preference (which that parent doesn't like or accept) in every case?
• What testimonial facts will be relevant?  A child's stated preference is one thing, but shouldn't a party or their attorney then be permitted to ask questions about parental coaching?  Spoiling and buying kid's loyalty?  Whether the child wants to live with mom or dad because they don't impose rules in their home?
• Does the court even have enough information to answer the threshold question of whether a child should be permitted to testify without first seeking outside assistance?

In order to succeed in achieving a client's goal of hearing from children when it serves that parent's agenda or perceptions, or in limiting either a child's input or damage to the child by having to voice a preference for one parent over another, custody lawyers and self-represented parties will do well to consider these questions in advance of making requests to the court.

It will be interesting to see if some judges effectively nullify the statutory mandate by imposing roadblocks or alternate routes that keep the questioning outside the family court proceeding itself.

Note: The Judicial Council has now, a year after this article was written, adopted Cal.Rules of Court Rule 5.250. Be sure you read and follow it carefully if a child wishes to express a preference.