California Family Law Attorney
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December 03, 2010
  ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU!
Posted By Thurman Arnold, CFLS

Elkins and Live-Witness Testimony

The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.

It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.

This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.

Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.

What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:

"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....

In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....

Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."

Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.

The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:

"(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.

December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.



T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization)

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December 01, 2010
  Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case?
Posted By Thurman Arnold

Q. We have a hearing coming up before the Christmas holidays over custody and visitation issues. I believe my children should testify in court about their father's living conditions, as well as what they have told me about some things involving the woman he has sleeping over, and what their preferences are as to custody. Is this possible?


A. It is possible under current Family Code section 3042. It may or may not be a wise choice for the sake of your kids, however, since it sounds as if you expect one or more of them to say things to the judge that might be make them feel as if they've betrayed their dad, chosen you over them, or that they are being placed into the middle of your dispute. I beg you think carefully about what you say to your children, and what you do here.

AB 1050 passed both houses of the California legislature in August, 2010. It becomes law on January 1, 2011 as revised Family Code section 3042. However, it is not implemented until 1/1/2012. Existing law required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.

New Family Code section 3042 will require courts 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, and in that case the court must explain that finding on the record. When judges and family court commissioners are instructed to state their findings on the record, it can sometimes be easier for them not to error on the side of permitting the testimony - which is why such provisions are added to statutes by their supporters. At the same time, requiring judges to state their reasoning does cause thinking judges to better evaluate the issues before them.

New Family Code section 3042 requires the court to provide an alternative means of obtaining information regarding the child's preferences if it does not allow a child 14 or older to testify as a witness.

Either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue.

According to its author, Assemblywoman Fiona Ma, current law was not sufficient because children over a certain age who had the capacity to express important preferences were routinely not allowed to testify under former section 3042. Hence, she believed that children's wishes were ignored except through the voices of third party evaluators or minor's counsel, and even then that they were not given proper weight. In my experience this was factually true. There is a longstanding judicial antipathy towards the unseemliness of testimony from children, and questions about its reliability.

The statute does not preclude younger children from testifying and so the law is essentially unchanged as to them - in their cases the court is not required to make findings on the record if it does not permit testimony.

The Bill's author also stated that nothing in the statute will require a child to express his or her preference. Instead she claims that section 3042 is strictly intended to provide a better avenue for participation in the proceedings and not to pressure children to express their wishes against their will. By the way, Assemblywoman Ma also sponsored Assembly Bill 102 of 2007, which permitted parties to registered domestic partnerships to change their names to the last name of their new legal partner, which I support.

Accordingly, the Bill directs the California Judicial Council to promulgate standards and guidelines and rules and procedures for the examination of child witnesses, and to suggest alternate and less intrusive methods for obtaining the information about preferences beyond directly questioning them in court.

Hence, at least as to your children's custody preferences, depending upon their ages, after January 1, 2012, you will likely be able to have the judge listen to them, particularly since there will be a period of confusion, especially in smaller jurisdictions, about how to manage child testimony for months to come.

I beg you to be careful with the power this new law gives custodial parents, which I fear if misused may become an invitation and an opportunity to increase conflicted and alienating behaviors rather than a simple and useful means of allowing children a voice in the proceedings.

T.W. Arnold, III, CFLS
December 1, 2010


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December 01, 2010
  What STANDARDS Are JUDGES Likely to APPLY When A REQUEST FOR CHILD TESTIMONY Is Made?
Posted By Thurman Arnold

Q. I have heard that children will be able to decide which parent they want to live with in 2011, is this true?


A. No. However, at certain ages their input may become more important to courts in deciding the question effective 1/1/2012.

Revised Family Code section 3042, effective January 1, 2011 but not implemented until January 1, 2012, directs trial courts to allow testimony from children who are aged 14 years or more on issues relating to custody or visitation, unless the judge or family court commissioner makes a finding on the record that doing so would not be in the child's best interest. In the event a court makes such a finding, it is nonetheless required to "provide an alternate means of obtaining input from the child." This statute is on its face intended to allow children to express preferences about their relationships with their parents, whether they be in terms of primary residences or visitations, but it opens the door to much more. Some judges will struggle to limit its application, for some reasons.

I predict that it is going to become a time-consuming, destructive mainstay in the diet of family law courts and custody attorneys or that judges will develop a method of nullifying the intent of the statute. As an experienced custody and family law attorney, I believe it is a really bad idea. But for now the reality is that children will be testifying in court like never before. How will family law courts deal with this legislative mandate? I suspect quite reluctantly since family judges see the problem more clearly than our legislators apparently do.

Judicial policy is likely to require, as a threshold question, a balancing of a number of concerns. These include the need to protect the child from perceived harm from the act and consequences of testifying, the new statutory obligation to consider children's expressed wishes and their supposed desire to express those wishes (as probably urged by the proponent parent), and the probative value of the child's input in deciding the issuers at hand (this probative value is implicit in the statute). I think most judges will want to avoid such testimony, but are going to have figure out reasons they can readily articulate why not to take the testimony in order to avoid reversals by appellate courts.

In arguing in favor or against introducing such testimony, you will want to be able to talk to the court about the following likely threshold judicial concerns:

  • 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 non favored 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.

T.W. Arnold

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