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[Scene: A packed rural California family court on Monday, the Order to Show Cause calendar is called.] Judge: Welcome. I know that all of you with children are caring parents. This Court believes that your children are more important than anything else. We want them to have a good relationship with both of their parents. Out of all the billions of people in the world you chose your spouse to have your child. Do not now ask your child to bear the weight of your conflict. You will be expected to make reasonable agreements to resolve disputes and not ask this Court to make all of the decisions in your life. Sitting here today are the Family Court mediators and the facilitator. They will help you mediate your parenting issues and decide support. Consider mediation of all issues in your case, to reduce conflict. Your children will be better off, if you do this for them. Now, first case, Bill and Jane Smith, how is your son Tom? Do the both of you want to be cooperative parents for the benefit of little Tommy? How many minutes have you spent in face to face discussion trying to resolve your issues before coming into this court? Parent: Well.... Attorney (for other parent): They haven't been talking since she moved everything out of the house and left him wondering, Your Honor, and she didn't call me or file a response.... Judge: Counsel, why don't you all go and discuss this matter and see if there is any possibility of reaching some agreements while I talk to these other parents who have just come in to put their mediation agreement on the record... The focus of most of the family court reform proposals of the past nearly three years has been to streamline processes, reduce conflict and increase judicial case management. The first proposals were clearly unworkable, or unrealistic, no matter how well intended. Family Court 2000 was developed in the face of a "pro per crisis in family law" that was described in January-February, 1995 in a series of Daily Journal articles. Those articles, Judicial Council statistics, and anecdotal data from Justice Donald King and former Judge Roderick Duncan were the basis for a State Bar article that was reprinted in the ACFLS newsletter in the summer of 1996. When SB 389 (Senator Kopp's tiering plan) generated intense opposition, a group of judges and family lawyers began meeting to develop a proposal to revise family court procedures. That group has continued to work on the proposal, led by the Family Law Subcommittee of the Family and Juvenile Law Advisory Committee to the Judicial Council (hereafter, Advisory Committee.) In October, 1997 I was appointed to that Advisory Committee. At our October 24-25 meeting we revised the earlier proposal in several substantial ways, adding help centers back but modifying the evidentiary proposals to protect due process while reducing needless litigation. That proposal was discussed by a joint Senate-Assembly Judiciary Committees on November 6. The Advisory Committee made further changes at its meeting December 12 and decided that most of its provisions should be returned to the legislature in the form of proposed bills in the upcoming session. A few changes will be again proposed by way of rules of court. Due to the origins and long history of the Family Court 2000 proposal, there are now many misconceptions about its present content. As recently as December 6, some family lawyers tried to convince me that the proposal still allowed "reports" into evidence at a hearing, without cross-examination. In fact, the "reports" are only to be considered without cross-examination at ex parte hearings. I believe it is time for family practitioners to work for consensus and the enactment of the legislative proposals. Failure to take some real steps toward reform will consign us to a practice that will be irrelevant to those seeking changes in their marital relations. There is no doubt that advocates of change from various interest groups and sectors will continue to advocate change from traditional litigation in family law. Most people can't or won't hire attorneys to do it. Conversely, those who can and will have little access to a court crowded with pro per litigants. The answer for those who can afford traditional litigation of family law whose efforts at alternative dispute resolution have failed and for the pro pers is the same: Case management, ADR and judicial involvement to reduce conflict whenever possible. Family lawyers should realize that case management and judicial involvement can create judicial resources by freeing court personnel and properly routing cases to the most appropriate method of dispute resolution. The Advisory Committee proposals for legislation will contain the following elements: Each of these concepts has been debated and discussed repeatedly over the past three years. It is time for action and family lawyers should take the lead in advocating reasonable changes to make family court a better and less conflicted place. |
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