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| New Legislation To Affect Family Law in California in 2011/2012 Based on Task Force RecommendationsMajor changes in California’s family law are expected in 2011 and 2012, the biggest as a result of the recommendations from the Judicial Council of California appointed Elkins task force that’s been studying the issue for several years.
San Diego family law attorneys Michele Sacks Lowenstein and Elizabeth Brown from Lowenstein Brown http://www.lowensteinbrown.com address the Elkins task force recommendations and the new laws in this video: http://lowensteinbrown.com/ “The most sweeping change to take effect in 2011”, says Lowenstein, “is that parties will be entitled to give oral testimony in a case they bring before a family law court. This will be the default position, even for temporary orders (what I refer to as a ‘mini trial’), and both parties would have to agree to waive it. This was previously not the case in many jurisdictions in CA.” “The other major impact”, says Brown, “is that state-wide there will be more strict, uniform case management to move cases through the court in the most time- and cost-efficient way.” Brown adds that San Diego County already has an efficient system, with local rules managing cases and parties through the court. “Other parts of the state are looking at San Diego County’s model, and will phase in improvements throughout 2011 and 2012 as they put procedures in place.” Brown mentions, for example, that a case should be assigned to one judicial officer throughout the process, to maintain stability, and ensure the consistency of a judge as the case progresses (as long as that judge is still sitting in family law court). Outside of San Diego County, she can point to examples where it wasn’t uncommon to have three different judges at five different hearings, all within a period of a few months. Lowenstein addresses the money question. “Will this make these cases (that would otherwise have been submitted to the court on written declaration, but now have parties giving live testimony) more expensive? In a word, yes,” says Lowenstein. “It will cost some people more. But perhaps the more important question is what’s the effect of these new choices? Can the parties agree to not use oral testimony? In what situations would they want to use it or avoid it?” Just to be clear, parties have always had the ability to give oral testimony – but for temporary orders, those issued before the beginning of the case for say custody and support, parties would present evidence on written declaration. So the reason for the increased costs is simply that these mini trials will raise the costs of getting these first orders. Addressing what is meant by ‘oral testimony’, Lowenstein answers, “It is a formal court, where a judge has you sworn in, and you are taking testimony under oath. Questions will be asked (of you, friends, parents and/or other witnesses) by your attorney, and by the other party’s attorney. Like other court proceedings, rules of evidence apply, and questions must be asked and answered according to these rules. It’s not like someone can take the stand and stop talking two hours later.” The new law is a result of California’s Supreme Court decision that found some practices at the trial level denied clients due process of law, by not providing them the ability to give oral testimony. The Elkins task force, consisting of attorneys, trial and appellate judges, independent individuals, and special masters that work with litigants, took testimony from those who had been through the family law system, and found that many felt they weren’t being heard. Through oral testimony, judges will get a first-hand feel for the personalities involved, and each individual will have the opportunity to be heard, directly. Many on the task force felt that this was a wake-up call, and this new law is the result. Brown points out that there have always been numerous options for those considering or navigating a divorce, dissolution of a registered domestic partnership, or any other family law matter. With this change, one client may find comfort in being able to tell his/her story first-hand and feel listened-to, and may have previously have felt cheated out of this opportunity. Another client might still prefer to resolve the case in a conference room through ADR (Alternative Dispute Resolution), and keep his/her personal matters out of a public court. When asked what kind of case lends itself to needing oral testimony vs. taking advantage of other resolution processes, Brown suggests that it’s not necessarily what kind of case, but rather, what the parties hope to achieve and resolve. “As a first step,” says Lowenstein, “a client should sit down and discuss strategy with his or her attorney. What are the objectives? What witnesses are important? Is a three-day trial on a small issue at the beginning a must, for example, knowing that there is always the option of a three-day, or even a three-week, trial later, if the parties are unlucky enough to not be able to resolve differences.” Brief biographies on quoted experts: o Michele Sacks Lowenstein http://www.lowensteinbrown.com/ o Elizabeth Brown http://www.lowensteinbrown.com/ # # # Lowenstein Brown is a Professional Law Corporation in California focusing on family law and alternative dispute resolution. It handles issues related to divorce (both litigated and through alternative dispute resolution), pre- and post-nuptial agreements, paternity, spousal, partner and child support and support arrearages, custody, post-decree issues, registered domestic partnerships and more. End
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