Monday, October 19, 2009

My Elkins Task Force comments

The California Elkins Task Force has posted recommendations for public comment, as explained below. I have drafted some comments that I intend to submit. I welcome feedback, and urge you to submit your own comments.

The Elkins Task Force has many recommendations, but very few of them are directed at its main purpose -- to propose measures that allow family court litigants to get the protections that are ordinarily available in civil court. The California Supreme Court ruled in Elkins v Superior Court (2007) that family court trials should be governed by the rules of civil procedure in civil cases, and no new legislation or funding should be required to abide by that decision. Some of the recommendations seem to be even contrary to the Elkins decision.

My comment is that the Task Force should focus on concrete recommendations that will bring civil court protections to the family court. I propose measures in three particularly important areas, hearsay, finality, and court-appointed witnesses.

The Family courts are extremely sloppy about hearsay, and the recommendations threaten to make it worse. For example, section 5 recommends allowing child hearsay that would never be allowed in civil court. I propose:

No one should be allowed to report on a child interview, unless the interview is recorded and the parents are each able to conduct interviews under similar circumstances.

No family court should accept any documents or other communications, unless submitted by a party in connection with a scheduled hearing, and served on the other parties.

No expert opinion should be accepted or considered, unless it meets the conditions below.

Civil courts are entirely focused on working to a final judgment, which is then enforceable or appealable. Even juvenile dependency court is usually able to come to a conclusion within a year on whether a parent is fit or not. But family court cases can go on for years, without ever resolving anything with any finality.

I propose that any allegation of unfitness must be proved within 6 months, or else the child custody would automatically revert to whatever permanent status was held before the allegation. If there was no permanent order, then custody would revert to 50-50 joint custody.

In particular, no order requiring that visitation be supervised should ever last more than 6 months.

Expert witnesses.
Family courts frequently appoint an Evidence Code 730 expert witness to recommend outcomes for a case, and then rubber-stamp the witness recommendations. In effect, the courts are delegating their decision-making power to the witnesses. For example, a psychologist might decide which parent should get legal and physical custody.

A civil court might also appoint an EC 730 expert witness, but the witness's role is only to help resolve some factual issue in dispute. For example, a physician might testify about whether an xray showed a tumor, but would not give an opinion about monetary damages.

I propose new rules that would limit family court experts more narrowly within their expertise, as civil court experts are limited.

No 730 witness should be appointed unless there is a scheduled hearing within 3 months, and the court has enumerated specific factual issues under dispute at that hearing.

No 730 witness should give any opinion on a conclusion of law, such as legal custody of a minor.

No court should act on any 730 recommendations without opportunity to depose the witness, have a court hearing with testimony from the witness, and have opportunity for rebuttal testimony.

No hearing should be delayed because of the inability of the court to appoint a 730 witness.

No 730 witness should be appointed with a boilerplate form, as such a form fails to specify the “purpose and scope of the evaluation”, as required by Rule 5.220(d)(1)(B)(ii).

No 730 witness should given any written opinion in a report unless that opinion is admissable under the Frye rule, as required in civil court, and that report documents how the report meets the rule requirements. In particular, the report must cite sources for any generally accepted knowledge.

My proposals here are influenced by my own situation. I had 50-50 joint legal and physical custody by final order of the court. After an ex parte request, Cmr. Irwin H. Joseph sent the cops to seize my kids and give my ex-wife temporary custody. After hearing accusations of emotional abuse, he declared that my setting the alarm clock for 7:00 am was “indicative” and “representative” of the charges, and delegated the case to a psychologist without another hearing being scheduled. The Santa Cruz court uses a boilerplate form for such delegations. The psychologist refused to take the case, and Cmr. Joseph refused to appoint a replacement. The upshot is that there is no finding that I have ever done any single thing wrong, and yet I have not been able to see my kids for two years. There is no end in sight, until my kids reach age 18.


Anonymous said...


These are excellent remedies. they place a timel limit on the resolution. They're very reasonable, too.

The way it is now, there's a presumption of guilt, approach. It can remain in effect forever, too.

Sure, it's understandable that exceptions need to made, as we're dealing with children vs. adults, and the courts need to error on the side of a caution, but only to a certain degree. At some point, it must be understood that if unsubstantiated claims are not proven up in court, the children's best interests are not being served, and the accused parent has been raped of their civil rights.

I hope you get somewhere with this. It's not just your case, it's the case of millions of children and accused parents in the U.S.

Anonymous said...

Sounds reasonable, but as you know, the family court seems to habitually defy reason in favor of protocol.

What gets me through (mentally):

I keep meticulous and comprehensive records of the case in the hopes that when my child becomes an adult, she can read them and understand the TRUTH about what REALLY happened. I've ensured that my child will be personally served those records if I should die before handing them to her myself.

I know that there are millions of people who have no idea exactly what happened during their parents' custody battle; they've just taken biased personal accounts as truth.

I assume that most of them would like to KNOW what happened, and why one of their parents (usually the father) became distant, or disappeared outright. Perhaps the parent who was shrewd enough to strip the other parent of their right, usually has something to hide?

I have a naive hope that one day it will be common knowledge just how destructive to society the family courts are, but the pragmatist knows that we're just devolving into a one-parent culture of promiscuity and dependence on "law".

Anonymous said...

some good observations, especially with regard to this becoming a legalistically oriented society, and it's in much more than just family law. Seems the reason why one parent will take the kids away completely from the other would be for purely financial gain, though in my case there was an overlay of ideological/religious differences as well. It's tax free income, after all.