BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 917 (Jackson)
Version: March 30, 2016
Hearing Date: April 12, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family law: court orders
DESCRIPTION
This bill would require the court, at the conclusion of any
family law hearing, to provide the parties with a written order
setting forth the basic terms of any orders made at that
hearing, and would additionally require the Judicial Council to
adopt a rule of court and any forms necessary to implement the
provisions of the bill by January 1, 2018.
BACKGROUND
Family law affects many critical and deeply personal aspects of
a person's life including child custody, personal safety, the
amount of child and spousal support one person will receive and
the other will pay, and how assets will be divided between
separating parties. These decisions have significant and
lasting impacts on the lives of the parties involved. The
thousands of cases heard every week in California's family law
courtrooms demonstrate the importance that families place on the
ability of the courts to resolve disputes peacefully and with
finality.
California's family courts have always strived to make effective
use of available resources while still meeting the changing
needs of families. However, while the number of cases filed in
the family law courts have steadily increased, the resources
devoted to processing and hearing those cases have not. In
2010, the Elkins Family Law Task Force conducted a comprehensive
review of family law proceedings and published a report that
included a number of recommendations to the Judicial Council of
California, aimed at increasing access to justice for all family
law litigants, ensuring fairness and due process, and providing
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for more effective and consistent family law rule, policies, and
procedures.
Implementation of the recommendations has been less than uniform
for a number of reasons, but has stalled in large part because
of the budget cutbacks resulting from California's recession. In
most counties, courts have attempted to distribute the impact of
the budget cuts by reducing funding across the board. In no
area have the cuts been felt more deeply than in the area of
family law, which has traditionally been underfunded and where
the vast majority of litigants are self-represented. Such
self-represented litigants are disproportionately affected by
the lack of resources, especially court reporters. Without a
record, these parties struggle to understand the specifics of
orders, often made verbally in court.
To ensure that litigants have the opportunity and ability to
understand and follow orders made at family law hearings, this
bill would require the court, at the conclusion of a hearing, to
provide the parties with a written order setting forth the basic
terms of any orders made at the hearing. This bill would
intentionally leave the method by which a court may create and
distribute these orders to parties open, thereby allowing
individual counties to adopt appropriate local practices, and
would require the Judicial Council to adopt a Rule of Court
implementing the provisions of the bill and any necessary forms
by January 1, 2018.
CHANGES TO EXISTING LAW
Existing law authorizes a court to prepare an order after a
hearing and serve copies on the parties or their attorneys or
order a party to prepare an order. (Cal. Rules of Court, rule
5.125.)
Existing law provides timelines and procedures for the
preparation and service of orders, but allows courts to modify
those timelines or procedures when appropriate to the case.
(Cal. Rules of Court, rule 5.125.)
This bill would require the court, at the conclusion of a
hearing under the Family Code, to provide each party present at
the hearing with a written order setting forth the basic terms
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of any orders that were made at the hearing.
This bill would not require the court to prepare or provide a
judgment of dissolution, legal separation, nullity, or
parentage.
This bill would not preclude the court from requiring parties to
submit orders, or from accepting proposed orders or stipulations
for orders from the parties or counsel at the time of the
hearing.
This bill would allow the court to permit parties or counsel to
submit more detailed orders after the hearing.
This bill would require, on or before July 1, 2018, the Judicial
Council to adopt a rule of court or any forms necessary to
implement this section.
COMMENT
1.Stated need for the bill
According to the author:
The absence of court reporters in family law actions leaves
many litigants, especially self-represented ones, without a
clear idea of what the court ordered, or of the obligations
imposed on the parties by the court. Further, the lack of a
record makes enforcement of orders difficult, appeals
difficult, and any sort of evaluation of judicial performance
all but impossible. This bill would require the court to
provide parties with written orders at the conclusion of a
hearing setting forth the basic terms of any orders that were
made at the hearing. This requirement would ensure that
litigants have specifics of any orders made so that they may
begin following the order immediately, as generally required
by law.
2.Litigants negatively affected by delays in receiving orders
Procedures and timelines in California courts vary significantly
from county to county because of geography, funding, local
practices, and the unique needs of different populations. In
some counties (e.g., Fresno, Sacramento, Ventura, and Santa
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Barbara) litigants have access to a copy of orders that same
day, while in other counties it may take weeks before a party
receives a written order in the mail. Orders given verbally in
court (i.e., custody and visitation orders) have immediate
effect, meaning any delay in receiving a copy of that order
increases the chance that parties will be unclear to the
specifics of the order they are legally obligated to follow. In
support, the California Protective Parents Association writes:
There are numerous due process issues in California family
courts currently. The most pressing issue is the absence
of a court record made by a court reporter or electronic
means in most courts. ? The lack of a court record ? makes
the issuance of a written order at the time of hearing
imperative, before memories fade.
Staff notes that parties who receive written orders in a timely
manner may benefit from the aid of law enforcement in the
enforcing of those orders. For many families, when one parent
refuses to abide by a court's visitation or custody order, the
immediate solution available is to call on law enforcement to
assist in the enforcement of that order. Without a written
order, law enforcement cannot help, and the parent's only legal
recourse is to wait for another court date. In many cases, the
parent feels as though any delay will put their child at risk of
maltreatment or abduction.
a. Self-represented litigants disproportionately affected
by any delays in receiving orders
By many estimates, nearly 80 percent of family law litigants
appear in court without the representation of an attorney.
These self-represented litigants, or pro pers, are
disproportionately affected by any delays in receiving orders
from the court. Represented litigants have counsel that often
insist on court reporters, at the litigants' expense, to
ensure that there is a record for clarity's sake. Represented
litigants also have an attorney with whom they can debrief
after hearings to address any questions or concerns.
Unrepresented litigants on opposite sides of a dispute often
have different understandings as to what the judge ordered,
and written orders are often received weeks later in the mail.
Such orders often are reviewed with memories that have been
weakened by the lapse of time. When pro pers disagree with an
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order, whether because of clerical error or disagreement with
a judge's assessment of the case, they generally lack the
procedural expertise to seek clarification from the court, or
timely appeal. The California Partnership to End Domestic
Violence, in support, writes:
Survivors of domestic violence access family courts for a
range of issues, including restraining orders, custody, and
divorce proceedings. Nationwide, almost 70 percent of
victims of domestic violence and sexual assault must appear
in court by themselves. Without an attorney to help them
navigate through the often confusing and overwhelming
process and without a written order setting forth the basic
terms of any orders made, victims are left with incomplete
information about their cases, and with limited options.
It is essential for all family court parties - including
domestic violence survivors - to have a written record of
orders made during hearings.
3.Applies only to orders made in open court
This bill would require courts, at the conclusion of any family
law hearing, to provide litigants with a copy of any orders made
at the hearing. The vast majority of orders given verbally in
court are custody and visitation orders. As noted above,
litigants are required to follow these types of orders
immediately, but it is often weeks before the parties have a
copy of these orders in hand. With regard to issues of support,
all California family courts employ a program, Dissomaster,
which produces spousal support orders. After their information
is entered, the program applies an algorithm and generates a
support amount, which the court prints and provides to
litigants. Accordingly, support orders produced in California
already comply with the requirements of this bill, and would
thus not be affected by its passage.
Other orders and decisions generated by family courts (e.g.,
division of community property, date of separation, etc.) are
generally decided outside the presence of the parties after the
court has had time to hear testimony, review all relevant
materials, research the law, and write a detailed decision or
order. Whether it is an issue taken under submission by the
court or a statement of decision, this bill would not apply to
any decisions or orders that the court does not make in open
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court.
In addition, when parties are represented, courts often order
attorneys to prepare orders, or courts may accept proposed
orders or stipulations from counsel at a hearing. This bill
would expressly permit these practices, thereby allowing, in
large part, courts and attorneys to continue existing practices
with regard to family law matters. Staff notes that allowing
counsel to prepare orders for the court's approval can be a
valuable tool with regard to conserving judicial resources.
4.Can courts comply with strict timelines required under the
bill without compromising quality
In California, the courts are managed at the county level.
Accordingly, there are 58 different systems conducting family
law proceedings. The methods by which litigants are provided
orders, and the timelines in which they receive them, vary
significantly throughout the state. Sacramento County has
implemented a Five-Minute Findings and Orders After Hearing
(FOAH) program whereby litigants, including self-represented
litigants, can receive their orders online within minutes of the
time that the order is made in court. The presiding family law
judge in Sacramento writes, "with our Five-Minute FOAH
procedure, litigants do not receive a mere written minute order
that is often illegible and has spotty enforceability with peace
officers; instead within minutes the litigant may download the
actual FOAH typed on the formal Judicial Council Forms and made
official by my electronic signature. Litigants, especially
self-represented ones, no longer have to wait weeks or months
for the actual FOAH to be submitted to the court, processed and
returned to the litigant. The program has been enthusiastically
received not only by self-represented litigants but also by the
family law bar."
Fresno County has long been providing litigants with
comprehensive written orders at the conclusion of a hearing. By
setting up templates in their word processing program, Fresno
created a process by which the court (either the judge or the
court clerk as the judge verbally gives the order in court)
clicks appropriate boxes on a series of pop up screens, and the
answers then generate a word document containing a comprehensive
order. The court then has the ability to highlight any word,
phrase or paragraph in that document, if necessary, and type in
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more specific information. Multiple copies of these orders are
printed out in the court room, signed by the judge, filed by the
court, and provided immediately to the litigant. Ventura County,
which also provides same day orders to litigants, uses a form
that the court fills out and requires litigants to walk the form
to the family law facilitator office, where an official order is
typed up. Santa Barbara and Tulare Counties also provide their
litigants with same day orders, and a large number of counties
rely on the family law facilitator offices to assist the court
with generating orders for pro pers.
Further, the state is roughly split between counties who are
"recommending" counties, and counties who are
"non-recommending." A handful of other counties employ a hybrid
system comprised of elements of both. A recommending county is
one where litigants meet with a third party (e.g., a child
custody evaluator or mediator) who, after taking information
from the parties, recommends a custody or visitation order to
the court. The court can then modify the order as the judge
sees fit based on information received at the hearing. In
recommending counties, courts are arguably armed with a
comprehensive and unique order which relieves the court of
significant work, even if the order must be further tailored by
the judge to fit the parties' specific needs.
Given the number of different systems, this bill intentionally
leaves open the means by which courts may fulfill the
requirements of this legislation. The author writes, "it is
incomprehensible that in a state as large, populous, and diverse
as California that a one-size-fits-all solution to family law
procedure would work. It is our intention that SB 917 is
flexible to meet the needs of individual counties while ensuring
clarity for California's family law litigants." The California
Judges Association (CJA) writes that they will support this bill
if amended to address workload and funding concerns that vary
widely from county to county.
We appreciate your time and efforts, and that of your staff,
in convening stakeholders and justice partners to discuss the
important issue of litigants in family court having timely
access to their orders. Given significant variables between
courts - judicial officer workloads, whether the proceedings
are in child custody recommending counseling (CCRC) or
non-recommending counties, whether family law facilitators are
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present in each family law courtroom or shared between several
counties, capabilities of different IT systems, clerk staffing
and other resources, we have concerns about how this might be
scaled to appropriately recognize those differences, and about
funding to enable these additional services.
In stakeholder meetings, courts and practitioners alike have
expressed concern that requiring same day orders will reduce the
number of cases that courts can hear in a day, thereby
increasing the amount of time parties must wait before having
their cases heard. Courts have also expressed concern that this
bill will increase costs associated with family law proceedings.
The author and stakeholders have agreed to continue working on
the issues of (1) cost, and the related issue of (2) further
impact on court calendars, as this bill moves through the
legislative process. With regard to these costs, staff makes
two notes:
While the requirements of this bill might demand more
judicial resources upfront, ultimately the fact that
litigants have a clear understanding of the orders they are
subjected to should result in lighter court calendars
because the contents of the orders will not need to be
re-litigated.
Secondly, the issue is not the rate at which counties
are currently issuing orders. Clearly, many counties have
reached equilibrium with regard to the number of cases
introduced to the court and the number of orders being
issued. Accordingly, many counties have a backlog that
remains at a consistent, yet predictable, level. Thus, the
issue becomes one of clearing the current backlog and not
one of increasing the court's productivity.
Support : California Partnership to End Domestic Violence;
California Protective Parents Association
Opposition : None known
HISTORY
Source : Author
Related Pending Legislation :
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AB 1834 (Wagner) would allow a court to use electronic recording
equipment in a family law case if an official reporter or an
official reporter pro tempore is unavailable. This bill is
currently in the Assembly Judiciary Committee.
Prior Legislation :
AB 2089 (Quirk Chapter 635, Statutes of 2014) made various
changes to the Domestic Violence Prevention Act (DPVA) including
requiring the court to provide a brief statement of the reasons
for its denial of a restraining order either in writing or on
the record.
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