The family courts in California are, for lack of a better term, in crisis.  Anyone with experience in that area of law, or with personal experience with the courts, can tell you the family courts often do not provide justice.  Worse yet, they often injure everyone who comes into contact with them.

In my opinion, the family courts are the most important courts because they effect children. 

The “Elkins task force” was put together with the goal of helping the courts work procedurally better.  Here is a link

to a page that contains the report itself, recommendations, and even more interesting: public comments about the family courts.

The first thing to note is that the family courts now are required, when faced with a request for attorney fees, to make a finding of fact.

I would like to give credit to attorney Thurmon Arnold, whose blog informed me of this development.

Family Code section 2030 changes this playing field importantly by minting new judicial policies that include: 

  • Facilitating access to counsel by parties early on in the proceedings should be encouraged, and attorney fee awards help to accomplish this.  This is because cases are more likely to settle when people begin with a parity of access to resources, and settlement is always the ultimate goal.  FC §2030(a). 
  • Courts must now make findings on whether an award for attorney fees and costs is appropriate, including based upon the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties.  FC §2030(b).  This revision directs trial courts to apply a variation of the disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d 1213, an appellate decision that some trial courts had ignored.  Relative access measured in terms of such disparity is now key.  “Disparity” implies ‘a great distance or gap.’
  • The California Judicial Council is directed, by January 1, 2012, to promulgate and adopt state-wide court rules in order to implement this directive in terms of what information is to be submitted to court’s to support attorney fee requests. “

One of the single most disturbing things about California family courts is the manner in which the party in possession of the money uses said money, often community property, to crush the other side into submission.  By waging a war of attrition, designed to exhaust the resources of the other party, the spouse in control of the funds can and usually wins.  The family code has specific code sections that require judges to make certain one party has the resources to defend themselves: in reality judges rarely do so in a meaningful way.

Imagine if you were  a judge.  Your courtroom is packed daily.  You are required to move cases forward.  Failure to do so reflects badly on you.  The call to “clear the docket” is a compelling one, and what is in it for a Judge to clog up the system with yet another case, when there are plenty already who can pay their own fees? If he or she denies attorneys’ fees, and the aggrieved spouse quietly goes away to live in a 600 square foot condo while ex-husband resides in a 4000 square foot mansion with new girlfriend and new baby, who is the wiser?  The next day that same judge will face another full docket.  I don’t say this as criticism of any judges in this position.  In fact, precisely the opposite is true.  I think that we treat judges extremely unfairly by putting them in a lose-lose situation, and it is our responsibility to fix this.  The problem is not a lack of will on their part to do the right thing.

Although shrill, hysterical critics of the family courts chalk it up to corruption (which certainly exists, no doubt), it’s more likely to be inefficiency, incompetence, and lack of money than anything else.

While the new law is a step in the right direction, we shall see what happens.