BILL ANALYSIS                                                                                                                                                                                                    



                             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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