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
"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
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)