March 19, 2013

Considering Options: Evaluating Recent Changes in California’s Family Law Courts and Services

A few years ago, the California Supreme Court wrote a scathing analysis of the state of the family court system.  It noted that the large majority of litigants were self-represented and the result was a system in crisis.  Courts, then and now, are unable to provide support services to the wave after wave of California’s self-represented litigants, which leaves judges and clerks at a loss about how to administer the divorce process fairly while ensuring quality outcomes.

After the California Supreme Court’s report, the Elkins Task Force was created and their administrative recommendations have been slowly implemented over the years, culminating in a set of drastic changes and requirements instituted as of January 1, 2013.

When making a decision on how to proceed with your divorce, it’s important to consider the family court system as it is, not as we wish it were.  Here are some facts to consider when evaluating if you want to use lawyers and the court system to develop your divorce decree.

  • When child custody is at issue, parents are ordered to work with a court mediator-mental health professional who has, on average now, four to five total hours per case to read all the paperwork submitted to them about the parents’ situation, meet with the parents and maybe the children, and write their report and usually their recommendation.   That is only four to five hours to evaluate and maybe even weigh in with their powerful opinion.
  • The new requirements based on the Elkins Task Force are still being hotly debated:
    • Now Judges are encouraged to talk to children themselves, in chambers away from their parents, starting at age 14, if the child “wishes” to, and they are explicitly able to meet with younger children too if they think it’s appropriate;
    • The timing of filings in a family law case is now mandated which leaves many self-represented litigants scrambling to fulfill service, notice, and response filing deadlines.  It also makes confidential processes like Mediation and Collaborative Practice more expensive due to the required paperwork that must now be periodically resubmitted to keep their participants out of court;
    • Some of the requirements are so onerous that, at a seminar I recently attended, a room full of hundreds of family law lawyers and judges broke out laughing when the speaker ran through the new rules and then deadpanned:
      • “Good luck Pro Pers [self-represented litigants]”.
  • And finally, the reality that is not new: when you enter into the legal system you give your lawyers and/or the judge the power to decide your future, your spouse’s future, and your children’s future.

These new changes to the Family Law Courts are predicted to create two worlds for our divorcing families.  In one world more and more people will flock to out-of-court processes like Mediation and Collaborative Practice.  In the other world, everyone else, whether represented by lawyers or not, will be stuck in a family law court system that is flooded with litigants, lacks adequate local and state funding, and is thus unable to provide quality support and services.

Unmani is exceptionally gifted at mediating difficult situations.

Unmani is exceptionally gifted at mediating difficult situations.  At critical moments when the dialogues seemed about to derail, Unmani masterfully steered us back on course.  Her calming influence, insights on the legal requirements, and laser focus on the relevant issues very positively influenced the outcome of our divorce settlement and subsequent mediation qualitatively and quantitatively.  In fact, my ex-wife and I would not have the solid, congenial co-parenting relationship we have today without key conversations—including very difficult ones—we had only because it was safe to have them with Unmani present.

- Damian R.
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