Judicial Council Gives Due Process to Family Law Litigants with One Hand While Taking it Away with the Other

In the wake of the California Supreme Court’s landmark decision Elkins v Superior Court (2007) 41 C4th 1337, then Chief Justice Ron George created a task force to look into measures that could be undertaken to ease the burden on both overcrowded courts and the large number (approximately 70%) of unrepresented family law litigants. The drafters of the Elkins Family Law Task Force: Final Report and Recommendations, issued April 2010, expressed concern, among other things, over the drastic reduction of live testimony in family court, which they felt deprived family law litigants of due process. In 2010 the legislature introduce a package of new statutes designed to address the concerns of the Elkins Task force (Assembly Bill 939). The Judicial Council duly adopted a new rule, effective July 1, 2011, that relates to the new statutes, Cal Rules of Ct 5.119.

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Before the decision in Elkins, an old case, Marriage of Reifler (1974) 39 C3d 479, 114 CR 356 held “that evidentiary declarations may be used in lieu of live testimony in a postjudgment modification of support and attorney fees.” Since Reifler was decided, it appeared to the Task Force that overburdened trial courts were using a broad interpretation of its holding to virtually prohibit live testimony at all short-cause hearings.

One of the statutes added to the Family Code in last year’s legislative session, Fam C §217, sought to address this by requiring that the court receive “any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties,” absent a contrary stipulation of the parties or a finding of good cause to refuse such testimony.

The Judicial Council’s new Rule 5.119, effective July 1, 2011, relates to the new Fam C §217.

But in giving due process with the right hand, it is taking it away again with the left: The Judicial Council also amended Rule 5.118 to limit the length of a declaration that accompanies an order to show cause to 10 pages and a reply declaration to 5.  It is unclear whether the 10-page limit will include the supporting memoranda and other attachments to the declarations. Unlike Rule 5.119, the amendment to Rule 5.118(f) does not implement any of the measures addressed in AB 939.

Described by one attorney as “a solution in search of a problem,” this new rule seems likely to have a negative effect on judicial economy and family law litigants’ right to due process, and the procedure for requesting an exception, objecting to it, etc. is unduly complex, requiring ex parte motions that are otherwise disfavored in the absence of an emergency. It could also lead to filing multiple motions on related matters that could otherwise be heard at once.

Most experienced family law practitioners already know better than to overwhelm judges with voluminous declarations. But family law cases can be very complex, and each family needs an opportunity to get the information that the court needs to make decisions that will affect the parties’ lives for years and decades to come.

For more about law and motion hearings in family law, go to CEB’s books Practice Under the California Family Code: Dissolution, Legal Separation, Nullity and California Child Custody Litigation and Practice.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 Responses

  1. Great discussion. Alas Due Process is not favored in our Courts.

  2. And I want to add, the same thing is happening with Child Testimony. They instruct the Judges to allow it, but they can use their ‘Judicial Discretion to deny it.’

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