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.
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.