BILL ANALYSIS Ó
SB 917
Page 1
Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
917 (Jackson) - As Amended June 23, 2016
PROPOSED CONSENT
SENATE VOTE: 39-0
SUBJECT: Family law: court orders
KEY ISSUE: IN ODER TO HELP FAMILY LAW LITIGANTS -- THE VAST
MAJORITY OF WHOM ARE UNREPRESENTED -- UNDERSTAND WHAT A COURT
HAS DECIDED, SHOULD FAMILY COURTS BE REQUIRED TO PROVIDE PARTIES
WITH WRITTEN COURT ORDERS SHORTLY AFTER HEARINGS?
SYNOPSIS
The impact of family law cases on children and families cannot
be underestimated. These cases involve such important issues as
with whom a child will reside, the safety of the parties, child
and spousal support, and the division of a family's assets and
debts. The decisions in these cases can affect families for a
lifetime. Yet all too often, family law litigants - the vast
majority of whom are unrepresented by counsel - have significant
difficulty navigating through the court process; and that
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difficulty affects case outcomes. There is all too frequent
confusion by unrepresented litigants about the basic nature of
the court's orders as they attempt to fend for themselves, and
there usually is no recording or reporting of any kind for them
to review after the hearing.
This bill seeks to address one key issue faced by many
unrepresented family law litigants: understanding what
transpired at the court hearing. All too often the judge issues
orders verbally from the bench, but the parties do not
understand what was said and what was ordered. Without
attorneys to help explain the legal ruling and help draft an
order for the court to sign weeks later, if at all, the parties
can be left without an understanding of both what transpired in
the courtroom and what they have been ordered to do. Seeking to
overcome this significant problem and ensure that parties have
the opportunity and ability to understand and follow orders made
at family law hearings, this bill requires the court, by July 1,
2017 and within two court days after the conclusion of a
hearing, to provide the parties with a detailed, official order
setting forth the basic terms of any orders made at the hearing.
This bill intentionally leaves open the method by which a court
may create and provide these orders to the parties, thereby
allowing individual courts to adopt appropriate local practices,
and requires the Judicial Council to adopt a Rule of Court
implementing the provisions of the bill and any necessary forms
by July 1, 2017. While the bill mandates that orders be
provided within two days, it does state that when practicable,
the court should provide parties a copy of the order as they
leave the courtroom, which would be the best outcome for the
parties, but may not be possible today in many courts.
This bill is supported by, among others, the Family Law Section
of the State Bar and the California Partnership to End Domestic
Violence. It is supported by the California Judges Association
if amended to address workload and funding concerns. There is
no reported opposition.
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SUMMARY: Requires courts, beginning July 1, 2017, to provide
family law litigants with copies of court orders. Specifically,
this bill:
1)Unless a shorter time is provided by another statute, requires
the court, beginning July 1, 2017, within two days after the
conclusion of a hearing under the Family Code, to make
available to each party who is present at the hearing a
written, detailed, official order setting forth the basic
terms of any orders that were made at the hearing. Allows the
provision of the order to be done electronically. Provides
that, to the extent practicable, the court shall provide the
order, in writing, to each party who is present at the
hearing, prior to that party leaving the court that day.
2)Does not require the court to prepare or provide a judgment of
dissolution, legal separation, nullity, or parentage.
3)Does 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.
Allows the court to permit parties or counsel to submit more
detailed orders after the hearing.
4)Requires the Judicial Council, by July 1, 2017, to adopt a
rule of court and any forms necessary to implement these
provisions.
EXISTING LAW:
1)Authorizes a court, in family law proceedings, to prepare an
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order after a hearing and serve copies on the parties or their
attorneys or order a party to prepare an order. Provides
timelines and procedures for the preparation and service of
orders, but allows the court to modify those timelines or
procedures when appropriate. (Cal. Rules of Court, Rule
5.125.)
2)Requires that a court issue or deny an ex parte request for a
domestic violence restraining order on the same day that the
petition is submitted to the court, unless the application is
filed too late in the day to permit effective review, in which
case the order shall be issued or denied on the next business
day. Requires the court, if the order is denied, to state its
reasons for denying the petition in the order. (Family Code
Sections 6320.5 and 6326.)
FISCAL EFFECT: As now in print this bill is keyed fiscal.
COMMENTS: The impact of family law cases on children and
families cannot be underestimated. These cases involve such
important issues as with whom a child will reside, the safety of
the parties, child and spousal support, and the division of a
family's assets and debts. The decisions in these cases can
affect families for a lifetime. Yet all too often, family law
litigants - the vast majority of whom are unrepresented by
counsel - have significant difficulty navigating through the
court process; and that difficulty affects case outcomes. There
is all too frequent confusion by unrepresented litigants about
the basic nature of the court's orders as they attempt to fend
for themselves, and there is usually no recording or reporting
of any kind for them to review after the hearing.
This bill seeks to address one key issue faced by many
unrepresented family law litigants: understanding what
transpired at the court hearing. All too often the judge issues
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orders verbally from the bench, but the parties do not
understand what was said and what was ordered. Without
attorneys to help explain the legal ruling and help draft an
order for the court to sign weeks later, if at all, the parties
can be left without an understanding of both what transpired in
the courtroom and what they have been ordered to do. Seeking to
overcome this significant problem, this bill requires court to
make available to the parties a copy of their family court order
shortly after the order is issued by the court. While the best
outcome would be for parties to receive copies of court orders
when they leave the courtroom, this bill recognizes that this
goal may not be achievable for many courts today and allows the
court two days to make the order available to the parties, which
can be done electronically.
In support of the bill, the author writes:
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.
Orders are typically made verbally in a family law proceeding,
and parties often must begin following that order immediately.
Rule of Court 5.125 creates a framework that courts may adopt
for the preparation, service, and submission of orders after
hearing. The process can take up to a month (or more) before
parties receive a written copy of any orders made at court.
Courts may also create their own process for creating orders
after hearing. Thus, the amount of time it takes for a
litigant to receive an actual written order varies from county
to county. For example, in Sacramento and Fresno counties,
litigants receive the order that day, but in San Diego and Los
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Angeles counties it may take a few weeks, or longer, before
the litigants receive the order in the mail. Given that it
may be weeks or months before parties have a written order to
reference, the parties may have a difficult time verifying the
order's accuracy or determining if the order is lacking in
important details.
Everyone is harmed when the parties do not receive timely copies
of court orders. By most estimates, at least 70 percent of
family law litigants appear in court without an attorney. While
more parties start the process with attorneys, some hire limited
scope attorneys who may not be willing to prepare an order after
hearing, while other attorneys may substitute out when the money
runs out. Most do not have representation in the first place.
These unrepresented litigants are disproportionately affected by
delays in receiving orders from the court or the failure to
receive a written order at all. Represented litigants have
counsel that can insist on court reporters, at the litigants'
expense in most courts today, to ensure that there is a record.
Represented litigants also have an attorney with whom they can
debrief after hearings to address any questions or concerns.
And most importantly, their counsel can successfully draft
orders, for the court's signature, that reflect what transpired
in court.
Unrepresented litigants may not understand what transpired at a
hearing and thus may be unable to draft an order, even if they
understood how to do so. Moreover, unrepresented parties 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, if at all. Late orders often
are reviewed with unclear memories. When unrepresented parties
disagree with an 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. This potentially requires
additional court hearings down the road to straighten out the
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confusion and can cause more strife for parties seeking to
separate with little animosity or co-parent children together.
The California Protective Parents Association, which supports
the bill, 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."
The Family Law Section of the State Bar (FLEXCOM) clearly
explains the issue and the bill's solution in its letter of
support:
Family law litigants and, specifically, those seeking domestic
violence protective orders are often self-represented. Many
issues in family law are determined on the law-and-motion
calendar based on the pleadings and short oral arguments. And
yet, those decisions have significant and lasting impacts on
the lives of the parties involved. Often self-represented
litigants leave the courtroom without a written order, and are
not able to navigate the process to obtain one. That omission
leads to confusion, further litigation, and other substantial
enforcement problems.
FLEXCOM supports this bill because it addresses a serious
access to justice issue: self-represented litigants often
leave court having no idea what just happened, or the
specifics of the order that was just made. An immediate order
would clear up that confusion and would lead to less
litigation and more efficient enforcement of court orders.
FLEXCOM believes [this bill] is a workable solution that
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recognizes the overwhelming presence of self-represented
litigants in the family law system, while also considering the
court's efficient work flow.
Additionally, since most family law orders given verbally in
court, including custody and visitation orders, are immediately
effective, if parties do not get a copy of the order, they will
not know what they are immediately required to do and it is
likely that there will be further disputes between the parties
and further need for court involvement. Parties who receive
written orders in a timely manner may benefit from the aid of
law enforcement in enforcing those orders. For some families,
when one parent refuses to abide by a court's visitation or
custody order, the immediate solution 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, which
could put the child at risk of serious harm.
The bill only applies to certain orders, thus reducing workload
issues for the courts. This bill requires courts, within two
days from the conclusion of any family law hearings where orders
were made, to make available to parties any orders made at the
hearing. The vast majority of orders given verbally in court
are custody and visitation orders. As noted above, parties are
required to follow these types of orders immediately. With
regard to issues of child support, all California family courts
employ a program which produces support orders. After required
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, such as
division of community property, and date of separation, are
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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 specifically does
not apply to any decisions or orders that the court does not
make in open 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
expressly permits these practices, thereby allowing, in large
part, courts and attorneys to continue existing practices with
regard to family law matters. Allowing counsel to prepare
orders for the court's approval, as is often done today for
represented parties, can be a valuable tool for conserving
judicial resources. However, attempting to have unrepresented
parties do the same often results in either the need for more
judicial resources to revise the order or the written order
simply not being completed.
The flexibility provided in the bill allows courts across the
state to comply. In California, there are 58 different trial
courts with different local procedures for conducting family law
proceedings. Moreover in some courts, procedures may vary judge
to judge. As a result, the methods by which litigants may be
provided orders, and the timelines in which they receive them,
vary significantly throughout the state. Sacramento 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
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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 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 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, 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 also provide their litigants with
same day orders, and a large number of courts rely on the family
law facilitators to assist the court with generating orders for
unrepresented parties.
Further, for custody and visitation orders, the state is roughly
split between courts that are "recommending," and courts that
are "non-recommending." Non-recommending courts provide parties
with a true confidential mediation process that has shown to
lead to greater settlements between the parties. The mediator
or family law facilitator can then help the parties draft up the
settlement agreement. A recommending court is one where
litigants meet with a third party (known as a child custody
recommending counselor) who, after failing to get the parties to
agree on a resolution, recommends a custody or visitation order
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to the court. The court can then adopt, modify or disregard 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, assuming the court chooses to follow the
recommendation of the recommending counselor, even if the order
must be further tailored by the judge to fit the parties'
specific needs, although in non-recommending courts more cases
may be resolved outside the courtroom.
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 supports the bill if amended
to address workload and funding concerns that vary widely from
court to court:
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 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 expressed
concern that requiring same day orders will reduce the number of
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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 could
increase costs associated with family law proceedings. However,
as now amended, this bill does not require that courts provide
parties with same day orders, although that is certainly the
preference. Instead it allows courts to make orders available
within two days of the hearing. Moreover, while the
requirements of this bill might demand more judicial resources
upfront, ultimately the fact that parties 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.
This bill does not prevent courts from providing orders faster
in domestic violence cases. Time is almost always of the
essence when domestic violence restraining orders are being
sought. The restraining order process allows for a temporary
order to be issued ex parte (potentially without involvement of
the other party) and generally requires that the court either
issue or deny a request for a temporary restraining order on the
same day it is requested (or the next day if the order is sought
too late in the day). (Family Code Section 6326.) Since this
bill specifically provides that it does not apply if a specific
statute has a shorter timeframe, it does not in any way prevent
courts from having to issue restraining orders on the day they
are requested, as specified in that statute.
ARGUMENTS IN SUPPORT: In support of the bill, the California
Partnership to End Domestic Violence 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
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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.
AB 917 is a clear common-sense step forward.
REGISTERED SUPPORT / OPPOSITION:
Support
California Judges Association (if amended)
California Partnership to End Domestic Violence
California Protective Parents Association
Family Law Section of the State Bar
Legal Services for Prisoners with Children
One individual
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Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334