Family Law Courts: A Call for Effective Change
by Mark E. Minyard
THIRTEEN YEARS AFTER ELKINS: A CRITICAL EXAMINATION
This article addresses the objectives and recommendations of the Elkins Family Law Task Force (EFLTF), the failure to implement many of the recommendations, the consequences resulting from the failures and proposed solutions.
ELKINS FAMILY LAW TASK FORCE: ORIGINS AND OBJECTIVES
The EFLTF was created in 2010, when then California Supreme Court Chief Justice, Ronald M. George, directed the Judicial Council to assemble a task force to assess and make recommendations regarding the current State of California’s family court system to ensure access to justice and due process for family court litigants. Comprised of justices, judges, lawyers, court CEOs and other professionals, the task force spent two years studying the issues, culminating in a comprehensive report. However, to date, many of the most pivotal recommendations have yet to be implemented.
FAMILY LAW COMPLEXITY AND MISCONCEPTIONS
The prevailing misconception that a day in the life of a family law judicial officer is spent dividing pots and pans, deciding who wins the better parent war, and ruling on whether Johnny will play baseball or soccer, belies the intricate nature of their responsibilities. While in truth, the complexity and sophistication of family law often eludes not only the public at large and California’s political leaders, but also on most lawyers who practice, and judicial officers who preside over other areas of the law, underscoring the need for a more nuanced understanding.
Although family law, at its essence, might simply be viewed as a lawsuit between two individuals who are married or with close familial ties; what is not so simple is that these individuals are most commonly entering our family court system at one of the lowest points in their lives, mired in emotional, mental, and potentially physical conflict, conflict which often involves the difficult decisions regarding children, with substantial financial support flowing from one party to the other, significant out-of-pocket attorney and expert fees, unique and complex discovery issues, the characterization, valuation, division and award of nearly every conceivable type of asset and/or debt (from mere trinkets to real properties, small home businesses to multi-million/billion dollar corporations and investments, retirement accounts, etc., etc.), all with potential generational impact for untold years into the future.
Indeed, family law may be seen as a multi-dimensional chess board, employing multiple legal issues and theories with different burdens of proof, where issues as divergent as property division, domestic violence and the marital standard of living may significantly impact financial support, and issues such as paternity, child custody, interstate visitation and therapeutic interventions may play a significant role in putting the puzzle together. Additionally, unlike a civil case, where the facts, issues, evidence and legal authorities are usually fixed based on a moment in time (e.g., breach of contract, wrongful termination, personal injury, etc.), with family law, the facts, issues, evidence and legal authority often span decades, and continue to accrue, morph and evolve throughout the entire litigation process.
No, family law is not simply pots and pans. Is there really any question as to why many of our judicial officers lament the prospect of finding themselves in a family law assignment?
CHALLENGES FACED BY FAMILY LAW JUDICIAL OFFICERS
Beyond the legal intricacies, family law judicial officers grapple with unique challenges, including the heightened emotional turmoil of litigants. They often live their lives as the targets of disgruntled litigants, with a disproportionate number of social media attacks, complaints to the Commission on Judicial Performance, and most concerning, increasing threats of physical violence, raising the question about the potential correlation between delays in family law matters and litigants’ frustration and aggression.
Even as recently as October of this year, yet another family law litigant threatened the lives of an Orange County family law judicial officer and other family court staff while, from Los Angeles Superior Court, Judge Lawrence Riff authored “Your Son Needs to Know That His Dad Was A Hero” that appeared in the October 24, 2023 edition of the Daily Journal, and where Judge Riff movingly wrote to the wife of the late Maryland judge, Judge Andrew Wilkerson, about her husband’s life as a family law judge before his murder.
Family law judicial officers and attorneys might disagree on how to fix the family courts, but most would likely agree that the current system is broken. To be clear, the dismal condition of the family courts is not the fault of the current or even past presiding judges or supervising family law judges throughout California; they did not create these systemic problems, they inherited them. But, if not with the judicial officers striving to work within the family court system, then where does the responsibility fall?
UNFILLED JUDICIAL POSITIONS STATEWIDE
The record number of legislatively authorized and funded judicial positions that remain unfilled, makes it essentially impossible for court leadership to adequately staff either family law courtrooms or other departments. For example, as of August 2023 the Orange County Superior Court had seventeen unfilled positions, which number was anticipated to increase to nineteen by January 2024 due to anticipated judicial retirements. Certain cases (e.g., criminal matters) have legislative priority and judges must be assigned to those departments first, which further hamstrings court leadership in staffing the various departments. Interestingly, child custody and domestic violence also have legislative priority, a fact that is essentially ignored. Many judicial applicants have been vetted by at least three different committees, and are eagerly waiting to serve the public, yet our Governor has not made filling these vacancies a priority, leaving the parties, the children, the judicial officers and the court to suffer.
UNDERSERVED AND SELF-REPRESENTED LITIGANTS
Providing the under-served with access to justice remains a paramount concern in legal discourse. Who is most abused by the system that exists in family courts? The underserved are the ones afraid of losing their wage-paying jobs by taking time off to appear in court only to have their matter unresolved, hastily addressed, or continued for months. Although assistance to the underserved and self-represented has greatly improved with the court facilitators’ offices, the courtroom experience of the underserved remains fraught with challenges. If the family courts are broken for those with means, consider what it is for the underserved.
EFLTF RECOMMENDATIONS: A PLEA FOR IMPLEMENTATION
Guided by the commitment for fundamental change, the objective of the EFLTF was to “develop a blueprint for fundamental change in the family law system.” Although the EFLTF made well over 100 recommendations, many of the most impactful recommendations have yet to be implemented. And, although they are not the reasons for the current deficiencies in the family court system, improvements are not likely to occur unless our family law judicial officers and lawyers alike make this their cause and calling and prod our political leaders into action. Perhaps, if all California family law judicial officers simultaneously requested reassignment out of family court, Governor Gavin Newsom might realize that it is in his own best interest to acknowledge that our family courts are in crisis and take the necessary action to fill the incredibly high number of vacant judicial positions throughout the state and that, by not addressing this issue, Governor Newsom is opening himself up to a backlash which might significantly impact his own future plans.
The following EFLTF recommendations and proposals, if implemented, would have an immediate and significant impact on access to justice and due process throughout California’s family court system:
- that nineteen percent of the judicial officers in each county be assigned to family court. For example, this would increase Orange County’s sitting family court judicial officers to twenty-seven, from the current seventeen and one-half judicial officers (twenty if you count the two and one-half Department of Child Support Services judicial officers that are funded by the federal government.)
- that the Judicial Counsel “adopt a rule of court requiring that long-cause hearings and trials that cannot be completed in one day must, absent a finding of good cause, be continued to the next day routinely designated by the court for trials.”
- that “Courts may want to assign civil trial judges with family law experience to hear trials, particularly those principally involving financial issues.”
- that “[although], Family Law is often regarded as somehow less important than some other types of cases in the courts. Judicial leadership is needed to ensure that the family courts get sufficient resources to provide California families with the time and attention they deserve to resolve their family law disputes in a timely manner.”
- that “The resources provided have not been proportionate to the volume of cases and proceedings related to family law. Many suggested changes can increase efficiency in the delivery of services in family law without adding resources. However, without significant additions of judicial officers and staff resources, courts will be unable to meet the crushing workload in family courts.”
- that supervising family law judges, in consultation with the presiding judges, work to ensure that the family court has adequate resources and that this be a duty of the presiding judge.
- that supervising family law judges be elevated to presiding judges in courts with more than ten family law judicial officers.
- that a rule be adopted that allows judicial officers to sanction lawyers, not just the parties, for inappropriate or delaying behavior.
- that the courts accurately assess the workload of the family courts and the re-allocation of resources.
- that the judicial appointment process be changed to encourage more family law attorneys to apply.
- that, with exceptions, before being assigned to a family law assignment, a judicial officer has at least two years of judicial experience.
JUDICIAL WORKLOAD METRICS: A CRITICAL EXAMINATION
In 2019 the Workload Assessment Advisory Committee (WAAC) issued its most recent report assessing the judicial needs of each county to the Judicial Council of the State of California. This report uses a set of workload standards (case weights) which are a significant part of the formula used to determine the number of needed judicial officers. As Mark Twain once said, “There are lies, damned lies, and statistics.” The validity of the WAAC analysis is questionable at best. The needs assessment uses data from 2015, 2016 and 2017. Interestingly, Orange County and San Diego County were not included in the analysis and while Los Angeles County is listed as being a part of the analysis, a footnote indicates that there was only partial court participation. Is partial 1% or 99% and what departments were omitted? The report includes a detailed discussion of complex civil cases but does not give the same analysis to family law matters which is complex by any definition and more nuanced and unique than complex civil.
The report acknowledges some of its limitations by noting the significant differences between the size of courts, the need to perform additional analysis, the need for more data, and the fact that the analysis will evolve over time, etc. The report does not take into consideration the workload of new or expanded legislatively required findings required by Family Code Sections: 4320, 2030, 2033, 6320, and 3030 or the new CARE Court. The report also added the following caveats: the report was based on “self-reported” data, the analysis may not reflect a “typical workload,” and that the data was collected at one point in time (a four-week period) and gathering data throughout the year would provide a better representation of the average workload.
The report included qualitative feedback that impacted judicial workloads but noted that, unlike in prior reports, it did not adjust case weights based on that feedback. The feedback related to unfunded legislative mandates, rehabilitation and diversion related workloads, new and amended laws related to criminal justice reform, increased filing in civil cases, and increased filings in mental health cases.
Most Interestingly, the report listed the average number of minutes per filing needed by a judicial officer to resolve family law matters as follows: Dissolution 85, Parentage 127, Child Support 43, Domestic Violence 56, and Other Petitions 133. The minutes listed seem to bear no resemblance to actual practice. It is not clear whether the times listed are attributable only to pre-judgment litigation or also to post-judgment litigation. It is not clear what actions are included in “Other Petitions.” Does that category include discovery motions, spousal support, post-judgment modifications, enforcement matters and attorney fee hearings? The 133 minutes attributed to “Other Petitions” is 30% of the total minutes referenced. If “Other Petitions” means post-judgment filings, the analysis is further flawed by the fact that post-judgment matters comprise 60% to 70% of a judicial officer’s total workload.
When a judgement is entered in a civil case, unless there is an appeal or enforcement action, the matter is closed. However, a family law matter may be open for decades. The case will remain open until the youngest child attains the age of 18 and graduates from high school and until one spouse dies if spousal support is being paid. 2000 filings in 2023 remain open in 2024, 2025, etc. They are part of the bucket that continues to fill each year as more cases are filed. It is not clear how or whether the analysis addresses this dynamic.
It is unclear how or whether individual courts use this analysis to allocate judicial officers between departments but its value relative to determining the number of judicial officers needed in family law departments is di minimis.
FAMILY LAW AS A TRAINING GROUND: THE NEED FOR REEVALUATION
The EFLTF recommended that family courts be given “well qualified judicial officers.” However, in practice, rather than assigning judges to the family law panel who have either family law or prior judicial experience, newly appointed judges, with neither family law experience nor any training in managing a calendar, are routinely assigned to a family law panel for their initial judicial assignment. Is this practice fair to family law litigants, to children, to judicial officers. or to the courts? As the system operates currently, family court is essentially the training ground where many new judicial officers cut their judicial teeth, typically for two years, before being reassigned to a civil or criminal department. Shouldn’t it be the other way around, as recommended by the EFLTF.
EFLTF: “IV, Enhancing the Status of, and Respect for, Family Law Litigants and the Family Law Process Through Judicial Leadership”
Should a family law litigant be treated differently than a corporation, an insurance company, or a person involved in an automobile accident? As Martin Luther King recognized and stated, “Justice delayed is justice denied.” Being forced to wait months to obtain orders related to children, or for financial support to pay rent or buy food, is not what the. EFLTF had in mind. Why is the family court the only court that is forced to treat its litigants with disrespect while litigants in other legal disciplines receive very different treatment. If family court was a business, it would have been forced into bankruptcy decades ago.
It is also of note that family law judicial officers are not afforded the same level respect as are other judicial officers, which is puzzling. No area of law is more complex and divergent in its application than is family law. Family law judicial officers should be given sufficient time on each matter to make thoughtful and judicious decisions and not be forced to just get through their calendars.
CONSEQUENCES OF INACTION: A MULTI-FACETED CRISIS
The goal of the EFLTF was to improve the family courts to benefit those who pay for them and to give the family courts parity of resources with other courts. As a result of the failure to implement the EFLTF recommendations, family law litigants generally experience the following:
- Initial RFOs being set five or six months after filing, continuances of up to six months or more for temporary orders, and the time required to complete even a simple divorce, being far beyond any definition of reasonable.
- Hearings and trials are often piecemealed in half-day fragments spread over weeks, months and even years. The question that is often asked and never answered is “why can three or four consecutive trial days be devoted to a non-priority auto accident case with $500 of property damage and $2,000 of soft tissue injuries—no questions asked, while a lawyer handling a complex family law matter involving tens of millions of dollars may have to fight for four days of trial time spread over many months in eight half-days, or a lawyer handling a custody case involving one parent’s request to move a child across the country may have to fight for even one full trial day tried in half day segments spread over weeks or months?”
- Substantial additional and unnecessary attorney’s fees being incurred that would not otherwise be incurred, but for the multiple and long continuances and the piecemealing of the litigation itself, which often results in litigants losing their representation mid-way through a case, because of an inability to continue to fund the litigation.
- Adverse Childhood Experiences (ACES) endured by children in high conflict divorces being prolonged and intensified due to the length of time required to complete a divorce. The State of California has described toxic stress as a public health crisis due to the serious health risks to children relative to the disruption of healthy brain architecture development and many other health risks.
- Family court judicial officers working far more than normal hours (for the same compensation as other judicial officers) which contributes significantly to their desire to leave a family court assignment.
- A non-stop exodus of judicial officers from family court resulting in inefficiencies, litigants not having experienced judicial officers (two-thirds of the family law panel in Orange County have less than two years of family court experience) making decisions about their lives parties and the lives of their children, and litigants often having several different judicial officers hearing different parts of their cases. It was estimated by one Orange County family law judicial officer that the 2008 family law panel had close to 400 years of combined family law judicial experience and years of family law practice as lawyers. Commencing in January 2024, after anticipated retirements, the Orange County family law panel will have only a small fraction of that wealth of experience that it previously enjoyed.
- Newer judges (by February 2024, no judicial officer on the Orange County family law panel will have ten years of family law judicial experience) have minimal senior judicial mentorship.
EMPOWERING FAMILY LAW ATTORNEYS: A LEGISLATIVE INITIATIVE
The family law bar associations, the AAML, the AFLCS and the AFCC should consider a collaborative effort to retain a lobbyist to develop a strategy for a legislative solution to the challenges in the family courts. The combined influence of these groups could raise public awareness, highlight the issues, and potentially influence legislative changes. Family courts touch a staggering portion of our society. At least fifty percent of the population access the family courts in one way or another, whereas MAYBE ten percent access the civil courts only a small fraction of the population finding themselves in the criminal courts.
A realistic concern about efforts to improve the system is whether the cure could be worse than the disease and take us to a system where due process is eliminated by moving to an administrative version of justice in the name of efficiency. Some will recall a time when a proposed change included a real threat to the essential concepts of due process. That change was in the form of a proposal called ‘Family Law 2000.’ ‘Family Law 2000’ would have taken the entire California family law system to a dispute resolution model without the evidence code or due process, but for the vision and tireless work of Justice Sheila P. Sonenshine (Ret.) and the late Judge J.E.T. Rutter. It is hoped that, if changes are headed in that direction, groups like the AAML, the ACFLS, family law bar associations and family law judicial officers will be aggressively vigilant and actively oppose any attacks on due process in the family courts. One of the main objectives of EFLTF was to protect the due process rights of family law litigants in the same way they are protected in the criminal and civil courts.
SOLUTIONS FOR A BROKEN SYSTEM
Are there solutions to these problems? Yes, the system can be materially improved if there is the motivation to do so.
Filling the authorized judicial positions should be given priority by Governor Gavin Newsom. The funds for these judges are in the budget, unfilled judicial positions is not about money.
Updating the Judicial Council’s workload metrics to address the additional work performed by the family law judicial officers relative to pre-judgment litigation and post-judgment filings and litigation and relative to the legislatively mandated findings required today that were not required when the metric methodology was created. The working group must include family law judicial officers.
Assigning Judicial officers to family law in numbers consistent with the study of dozens of professionals who served on the EFLTF for over four years and consistent with the realities of the workload of family law judicial officers.
Make the assignment to the family law panel a three-to-five-year term. Assign judges to family law who have a minimum of two years of judicial experience unless they have a family law background.
Assigning judges sitting in other departments to domestic violence and long cause family law matters when their calendars allow and/or assign them to the family law panel one week per year. In Orange County, twenty judges who previously served on the family law panel now sit in other departments. Orange County family law judicial officers share the responsibility of serving on the week-long magistrate duty, which is a criminal law responsibility. Sharing of the burden of the impacted calendars in family court would make a significant difference and is equitable.
Chief Justice of the California Supreme Court, Justice Patricia Guerrero, (formerly the Supervising Family Law Judge in San Diego County) could change the rule or grant a waiver to allow retired family law judicial officers who are serving as privately compensated judges to return to the Superior Court to sit on assignment to assist in managing the impacted calendars, at least until the family law panels are staffed at EFLTF levels.
Judge Francisco F. Firmat (Ret.) recently wrote: “I am satisfied that if we rely on evolution, we will not, in our lifetime, achieve parity with the other departments. We need one major revolutionary structural change, and this is what I think would do it. Next time you have a case where the judge tells you he is going bifurcate the trial into multiple afternoons, you say, the following” Your Honor, I object to that schedule, the civil departments give continuous trials to matters. This family case is entitled to the same treatment as the civil cases. It is a violation of due process and a violation of equal protection to give family law litigants an inferior, more costly, more delayed time-fractured quality of justice (and if the facts allow, “your Honor, if I were called as a witness, I would testify that each additional bifurcated afternoon will cost my client anywhere from five to twenty additional hours of billed time; I can represent that my client has communicated to me that he/she suffers emotional distress that will not be reduced until the conclusion of this hearing, etc.’ or “your Honor, this case involves custody issues and custody is entitled to priority over other matters and that priority is being denied.”) My sense is that the Court of Appeals is tired of Alan S. type cases and would find that family law cases have a constitutional right to continuous trials the same as the civil cases. I think they would tell our courts to make a correction “with all deliberate haste.” At that point, the presiding judges would tell the civil and criminal bars that they will be losing judges. The DAs, the corporate interests, and the presiding judges will urge the governor to appoint more judges because they can no longer give family law the meager leftovers. That would bring about the change we need in family law.”
In Alan S. v. Superior Court, 172 Cal. App.4th 238 (2009), the Fourth Circuit referred to a 2009 Daily Journal article, written by Francisco F. Firmat (Ret.) who was the supervising judge of the family law panel at the time and described the article as “courageous.” In the article, Judge Firmat wrote about how people needlessly spend thousands of dollars due to the delays, the well-known problem of judges rotating out of family law, the failure of lawyers to complain loudly about the system’s problems, the failure of presiding judges to allocate the needed judges to family law, the failure of governors to appoint family law attorneys to the bench, and the failure of judicial leadership to solve the problems.
There are those who think that the family court does not need more judicial officers and believe it simply needs to be more efficient. It is fair to say that all areas of government and business can be more efficient. The people who think that efficiency alone will solve the problems are the same people who do not fully understand family law or the family court. Any family law judicial officer who has managed a “full” caseload for an extended period knows that increasing efficiency to the level of perfection will not solve the existing problems. If the topic is efficiency, then efficiency should also be carefully examined in both the criminal and civil courts. A comparison of the efficiencies in the various departments of the courts would likely be enlightening.
Consideration should be given to a systemic change, not a change which would only last while the current judges are in leadership roles. This would mean looking for legislative solutions not judicial branch solutions. A separate, independent family law court funded and resourced separately from the rest of the court should be explored. This change could eliminate the ongoing conflict between departments that arises from the criminal/civil side viewing family law from the perspective of a criminal/civil model which fails to understand the actual needs and dynamics of the family court. This change would allow people who understand family law to run the family law courts.
Those who are truly familiar with the challenges plaguing the family courts know that the courts need a holistic and enduring solution. Will Governor Gavon Newsom, the legislature, and court leadership throughout California, ever fully understand the importance and significance of the family courts and the impact they have on our children? Will the family courts ever be, at least, on parity with other departments rather than an afterthought?
Mark E. Minyard is a partner of Minyard Morris and served on the Elkins Family Law Task Force.