COMMENTS ON ELKINS FAMILY LAW TASK FORCE RECOMMENDATIONS

Note: Cross posted from [wp angelfury] A Human Rights Issue-Custodial Justice.

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Dear Friends,

Please send your comments regarding the Elkins Family Law Task Force recommendations to elkinstaskforce@jud.ca.gov before December 4, 2009. The recommendations are likely to drive California and perhaps national policy for years to come. http://www.courtinfo.ca.gov/jc/tflists/documents/draft-finalrec.pdf. Feel free to use any or all of the ideas below. Let me know if you need a Word attachment for better formatting.

COMMENTS ON ELKINS FAMILY LAW TASK FORCE RECOMMENDATIONS

Guiding principles for Elkins Family Law Task Force recommendations are to provide consistent and timely access to equal justice, procedural fairness and the due process rights of parties; increase efficiency, effectiveness, consistency, and understandability; and increase the public’s trust and confidence. The draft recommendations are generally very good; however, several represent the exact opposite of the Elkins principles as stated. Others need to be augmented to fulfill the intent of the guiding principles. The following suggestions are offered to ensure the recommendations meet guidelines and needs of the public, particularly citizens who enter family court seeking safety and justice.

PART I. INCREASING PUBLIC CONFIDENCE IN FAMILY COURT

21. Leadership, Accountability, and Resources (Elkins recommendations pages 69-75)

Increasing the accountability of family court professionals is the single most important change needed and would produce far-reaching, positive changes in all aspects of family law. Current oversight of family court is inadequate and ineffective. Appeals are priced out of the ordinary litigant’s range and trial court decisions are rarely overruled. The Elkins recommendations would be greatly strengthened by including the following suggestions:

• Equiping each and every family law courtroom with automated videotaping equipment to ensure that each and every family law proceeding is video-recorded, including in-chambers communications, would ensure access to justice and an affordable record. This is the most efficient, streamlined and effective method to ensure fairness, due process, transparency and intact (non-tampered), reasonably-priced documentation of hearings. Videotaping is already done in some California courts and in several other states such as in Hawaii which provides the videotape to the litigants at the end of the hearing for $25 within 2 weeks and can then pay a court reporter to transcribe the tape. (Elkins recommendations page 73 #8).
• A no-cost court ombudsman program (Elkins recommendations page 74) would be effective only if it consisted of an independent state-level administrative law judge panel.
• An ongoing volunteer citizen review panel is needed to review and remand for review to a new judge cases in which decisions have been made to place children with parents whom the child has disclosed are batterers or sex abusers, to ensure child safety.
• Family court judges should be rotated out of the family court entirely every 2-4 years to prevent burnout and cronyism (Elkins recommendations page 73 #C).
• Supervised visitation should be only for parents who have physically or sexually abused their partners or children (Elkins recommendations page 73 #E)
• To assure long-term functionality of an improved family court:
  • The immunity of judges and court-appointees needs to be limited, particularly when judicial or administrative proceedings are instituted within the scope of their employment and they act maliciously or without probable cause. See Governemnt Code 821.6 regarding their current broad immunity.
  • A Judicial Performance Evaluation process should be established as exists in at least one-third of other states.

3. Case Flow Management (Elkins recommendations pages 17-22)

The concept of an individual (court-appointee, court-employee or judicial officer) with extra powers of case manager and ability to appoint court-related professionals without the stipulation of parties would result in gross injustice, unfairness and violations of due process rights. This is because the amount of power given to that individual would very likely be abused. Such abuses of power are often already observed among case managers (Special Masters, parenting coordinators, etc.) to whom the parties have stipulated. The paragraph titled Caseflow Management (Elkins recommendations page 20 under No. 11. Case Management) should be deleted, and any other similar concept should be eliminated from the Elkins recommendations. This concept is not in line with the Elkins guiding principles.

Clerical calendaring and electronic tracking of cases is entirely different and would likely benefit parties and the court. All information from hearings and case flow should be posted electronically on the court website as exists in some counties and many other states such as Hawaii.

Increased sanctions (Elkins recommendations page 21), particularly against litigants, would certainly not increase the public’s confidence nor resolve the problems in family courts.

12. Expanding Services to Assist Litigants (Elkins recommendations pages 46-47)

Litigants do not come to family court for services; they need access to justice, due process and fairness.

• Alternative Dispute Resolution should be a service available in the community, just like Legal Documents Assistances services, with information on how to access such services available at the courthouse.
• Family court is a court of law and should not be providing services, nor requiring parties to use them.

2. Expanding Legal Representation and Providing a Continuum of Legal Services (Elkins recommendations page 14-16)

The Elkins recommendations should note that Family Code Section 2030(a) and 3121(a) already assure that both parties must be represented and provides for attorney fees. Self-represented litigants report that courts ignore their requests for equal representation. It is clear that oversight to ensure compliance with laws and rules of court and a method for continuous improvement through ongoing public feedback must be the first order of business to restore confidence in family court.

PART II. KEEPING CHILDREN PHYSICALLY AND SEXUALLY SAFE IN CUSTODY DECISIONS

Suggestions for Elkins recommendation sections 5. Children’s Voices; 6. Domestic Violence; 7. Enhancing Safety; 8. Contested Child Custody; 9. Minor’s Counsel; and 19. Family Law Research Agenda are listed separately but overlap in content. All focus on keeping children safe.

5. Children’s Voices (Elkins recommendations pages 25-28)

The recommendation that children’s voices continue to be interpreted by adults such as mediators and evaluators would result in exactly the same endemic problems as currently exist. In fact, children would have fewer opportunities to speak with the judge directly. This is contrary to the Elkins guidelines of fairness and due process. Hearsay and distortion of children’s voices would be reduced by direct testimony, just as with adult testimony. In all other court circumstances, witnesses speak directly to the court or jury.

• The choice of appearing at a hearing and speaking to the judge must belong to the child, not to the judicial officer.. Every parent whose custodial rights are at issue must be given the opportunity to examine/cross examine on the witness stand, the child/children who are the subject of the custody litigation as a matter of fundamental due process.
• Children’s wishes are supposed to be given due weight by the court (Family Code Section 3042); however, in practice. family court currently treats children as property.
• Children in family court must be afforded the same civil and human rights as children in juvenile court (W&I Code Section 349): to be given notice of hearings affecting them, a choice of attorneys if one is appointed, and the ability to speak directly to the court.
• To preserve due process, there should always be a court reporter present when a child testifies or speaks directly to the judge, or such communication or testimony must be captured on videotape and the record of such testimony shall be readily available to every party.
• Parties or their attorneys should be able to submit questions to the judge for the child to answer (to ensure the child is not traumatized by an aggressive parent or attorney).
• The facilities at a multi-disciplinary interview center (MDIC) could be used to interview younger children and the MDIT videotape could be provided to the court. See #8 herein (Contested Child Custody).

6. Domestic Violence (Elkins recommendations pages 29-30)

All family court judges should make written findings on the record of whether or not there is evidence of domestic violence as defined in Family Code Section 6203 or child physical or sexual abuse as defined in Penal Code Sections 11165.1, 11165.3 and 11165.4, when those crimes are alleged, to ensure that Family Code Section 3044 is usable.

CPS substantiation of physical or sexual child abuse must be a sufficient basis for a finding of such by the family court, and enough to require the family court to protect the child from unsupervised contact with the abuser until the child both 1. reaches age fourteen (14) and 2. makes a formal request of the court that the visitation become unsupervised.

• If CPS does not substantiate abuse, cases involving allegations of domestic violence, including child abuse, should be investigated thoroughly by a well-trained court investigator who is not to provide recommendations on parenting and custody. See #8 herein (Contested Child Custody).
• The investigator should carefully follow the protocol of Family Code Section 3118, using a uniform prepared format (template) to ensure that all steps of the investigation are followed properly. The parties should review the investigator’s report for accuracy prior to submission and should have the opportunity to cross examine the investigator.
• Children suffer greatly when placed with abusive parents and this outcome should be avoided whenever possible. Therefore, children who report that they are physically or sexually abused, or that one parent or household member is a domestic violence dominant aggressor, need the opportunity to design a parenting plan for themselves that would meet their needs. That plan should be endorsed by the court if it provides for the child’s physical and sexual safety. Since there are usually no witnesses to child abuse or domestic violence besides the perpetrator and the victim, the child victim’s disclosure should be considered prima facie evidence that such protection is required.
• Alternative dispute resolution and mediation should not be required for any cases in which a power imbalance exists between the parties, such as in domestic violence cases.
• Family Code Sections 1800 et seq must be brought up to date to reflect current realities of domestic violence, child physical and sexual abuse and substance abuse.
• A full investigation must be commenced by the Bureau of State Audits of the Family Law Trust Fund (Family Code Section 1852).

7. Enhancing Safety (Elkins recommendations pages 31-32)

Clear recommendations should be made that family court must always err on the side of caution to protect the child from physical or sexual abuse when a child has reported such abuse. The court should not consider concepts such as alienation when there is any evidence of violence or abuse.

If CPS is involved:

• CPS must not remove children from a fit parent.
• CPS must remove children from a parent who is abusive and unfit according to W&I Code Section 300.
• If used, CASA volunteers must be independent from the court and not connected in any way with either party. The child must be able to dismiss the CASA volunteer if she or he does not represent their wishes to the court.

8. Contested Child Custody (Elkins recommendations pages 33-35)

There is far too much confusion among court-employed, court-related and court-appointed professionals in contested custody cases. Elkins is urged to provide even more clarification, which would lead to streamlining and solid decisions that would prevent ongoing litigation and reduce costs for both the court and the parties.

a) When there are no allegations of domestic violence, child physical or sexual abuse, or substance abuse:

1. Mediators, including Family Courts Services mediators, are trained to conduct mediation. By definition, mediation is a confidential alternative dispute resolution method that assists parties to come to a voluntary agreement. The Elkins recommendations are very good, but need to expand on this point. Mediators should never provide recommendations to the court, nor should they mediate cases with allegations of domestic violence, child physical or sexual abuse, or substance abuse. These are issues far beyond their role, training and expertise.

2. Custody evaluators are to be used rarely and only in cases with no allegations of domestic violence, child physical or sexual abuse, or substance abuse. The role of custody evaluator has been problematic for decades, even after Senators Deborah Ortiz and Ross Johnson passed legislation to set standards for evaluator training, education and protocol.

· Custody evaluators must be under contract through a proper public contracting process, as in other state agencies.

· The appointment of an evaluator must always comply with Code of Civil Procedure 2032.310.

· Existing information should be used, such as existing medical, therapist and investigation reports.

· Psychological testing should be discouraged due to expense, intrusiveness and invalidity (tests are not normed on this population).

· Unproven theories such as parental alienation theories are not to be used or considered.

· Evaluators are paid by the court pursuant to Family Code Section 3112.

· Parties must first stipulate to the evaluator’s report prior to submission to the court as required by Family Code 3111(c). “The report may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report”.

· The court must provide a clear, effective complaint and oversight process for parties, especially self-represented litigants, who allege that evaluators have not complied with statute and rules of court.

· The use Evidence Code 730 appointments must be reevaluated, since custody evaluators are usually not experts in a particular specialized area.

3. For cases with no allegations of domestic violence, child physical or sexual abuse, or substance abuse, parenting time should mirror as closely as possible the pre-separation caregiving (feeding, bathing, clothing, putting to bed, taking to school/ doctor/activities, etc.) arrangement for the past three to five years. If previous caregiving was equal in time and quality, the child’s primary parent (principal attachment figure with whom the child has a bond) can be determined by asking the child which parent he or she goes to under stressful conditions such as when injured or afraid. A secure, supportive and safe primary parent is crucial for a child’s healthy development and interruption of that bond is likely to result in later developmental and psychological problems for the child. http://www.childtrauma.org/CTAMATERIALS/AttCar4_03_v2.pdf and http://en.wikipedia.org/wiki/Attachment_theory.

4. Child support should not be based on time share of the child, to prevent parents from attempting to get custody in order to avoid paying child support.

5. An independent and effective complaint process must exist and information on how to access and use it must be provided in writing to all parties, including to children over 10 years of age.

6. There must be an effective means of protection from retaliation against the complainant by court officials who are the subject of the complaint.

b) When there are allegations of domestic violence, child physical or sexual abuse or substance abuse:

1. Violence is epidemic in contested custody cases. www.courtinfo.ca.gov/programs/cfcc/pdffiles/onepgDV99.pdf.

• In 76% of cases referred to mediation in California, at least one parent reported that interparental violence had occurred in the relationship.
• In 97% of cases that reported threats of violence had occurred, at least one parent also reported that one or more violent behaviors had occurred.
• In 41% of all cases, at least one parent reported that their child(ren) had witnessed violence between the parents.

2. Protocol for investigating such cases needs to be even further clarified by the Elkins recommendations. This will result in streamlining, uniformity statewide, cost effectiveness and, most importantly, increased physical and sexual safety for children.

A. If CPS substantiates physical or sexual abuse, no further investigation is necessary by family court. The child must be protected from further abuse or retaliation through placement with the non-offending parent and no contact with or only professionally supervised visitation with the named perpetrator until the child both 1. reaches age fourteen (14) and 2. makes a formal request of the court that the visitation become unsupervised.

B. If CPS has not substantiated physical or sexual abuse, a family court investigation must be ordered. The child must be protected from further abuse or retaliation through placement with the non-offending parent and no contact with the named perpetrator during the pending investigation.

· Only qualified investigators trained by a multi-disciplinary team in conducting criminal investigations in civil matters may conduct investigations when allegations of domestic violence or child physical/sexual abuse arise.

· Investigators must follow Family Code 3118 protocols and all relevant statutes and rules of court.

· A uniform, statewide template is required to ensure investigators comply with the complex laws and rules.

· If investigators are not public employees, they must be under contract through a proper contract process.

· All investigators are paid directly by the court pursuant to Family Code Section 3112.

· The qualified investigator interviews witnesses and gathers facts and information pursuant to Family Code Section 3118, including previous law enforcement and child protective services investigations, criminal background check on both parents, medical personnel interviews and records, interviews and written statements of prior or currently treating therapists, forensic examinations of the child, Victims of Crime eligibility, etc.

· Children under 10 years of age are to be interviewed at a Multi-Disciplinary Interview Center (MDIC) on videotape. Children ages 10 and older are to be given the option of being interviewed at the MDIC or interviewed on videotape by a investigator trained and qualified to conduct forensic interviews.

· The multi-disciplinary team must consist of the investigator, child protective services, local domestic violence center staff, a substance abuse specialist, a child advocate, a clinical mental health professional with a speciality in treating child trauma and abuse, and a law enforcement professional.

· The domestic violence agency and law enforcement determine if domestic violence occurred in the past 5 years, and identify the dominant aggressor and primary victim(s) of that violence. Standard lethality instruments are to be used to predict the likelihood of future violence by the dominant aggressor.

· A certified substance abuse specialist http://www.caadac.org/pages/certification/approved-schools.php must investigates allegations of substance abuse and provide random drug and alcohol testing.

· Team members independently complete the portion of the investigator template relative to their specialty.

· The team is reminded that family court is a civil court and the preponderance of evidence standard (50.1% likelihood) is used.

· Recommendations are limited only to child safety and protection needs.

· No parenting or custody recommendations are made by the investigator or the team.

C. All cases must have a timely evidentiary hearing on the facts/evidence gathered by investigator.

· The child must have all the opportunities afforded by Welfare and Institutions Code Section 349, including notice of the hearing (and determination if the notice is done properly if the child is not at the hearing) and ability to speak directly to the court. This could also be done remotely on webcam with a support person.

· The parents or their attorneys must be given the opportunity to cross examine the investigator and team members, along with any witnesses who submitted declarations.

· If there is evidence of physical or sexual abuse, the child must be protected through no contact or professionally supervised visitation with the person whom the child named as perpetrator until the child both 1. reaches age fourteen (14) and 2. makes a formal request of the court that that visitation become unsupervised.

· If a parent or household member has habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol (Family Code Section 3011(d) and 3041.5), children are not to be alone with that person.No parenting or custody recommendations are made by the investigator or the team.

· The court must make written findings of fact and rulings of law on the record regarding domestic violence, dominant aggressor, child physical abuse, child sexual abuse, substance abuse, and the parent to whom the child is primarily attached and who provided the primary pre-separation caregiving (Family Code Section 3011).

· The court must err on the side of caution regarding child safety and protection from physical/sexual abuse.

9. Minor’s Counsel (Elkins recommendations pages 36-39)

Minor’s counsel must represent the child’s wishes and provide a standard duty of care. (Representating the child’s “best interests” has led to attorney bias and minor’s counsel becoming a de facto attorney for one parent or the other.) Elkins recommendations are very good, but need to go farther to rein in this very problematic appointee category.

• If input is provided to the family court by a minor’s counsel regarding the child’s custody, such counsel must be subject to examination and cross examination by the parties regarding such input, as a matter of fundamental due process
• Minor’s counsel must be paid by the court if the court appoints the attorney.
• Children must have choice over an appointed attorney, as in juvenile court. They must be able to fire an attorney who is not representing them appropriately.
• With the previously described safeguards in place, there should be very little need for minor’s counsel.

19. Family Law Research Agenda (Elkins recommendations ages 62-65)

Data are needed about cases in which children are ordered into custody or unsupervised contact with sexual or physical abusers identified by the children or with domestic violence dominant aggressors. Additionally, there needs to be data on individuals in the California Safe at Home program through the Secretary of State’s office in which children are placed with the identified batterer and are not allowed to see the victim unless the confidential address is provided to the batterer. These are by far the most important statistics needed. Collecting these data would greatly increase public confidence that the courts are treating child safety with the seriousness it requires.

The only coordination with juvenile court should be for cases in which CPS has substantiated child physical or sexual abuse. Family court should honor substantiated findings and protect the child from further harm by the named perpetrator (Elkins recommendations page 64). If CPS does not substantiate child physical or sexual abuse, a proper family court investigation should be conducted. See #8 herein (Contested Child Custody).

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