BILL ANALYSIS                                                                                                                                                                                                    



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          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