X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
“It is not the dollars-and-cents issues which occupy our time and energies. It is the hidden agenda of anger, of rejection, of loss. It is the unspoken fear of loneliness and panic that one will never be loved again. It is the sound of a dream shattering, the dying gasp of hope, that we confront on a daily basis. � This is the battleground on which we come to work every day.” San Mateo family court Judge Rosemary Pfeiffer wrote those words 15 years ago. What was true then is true today. But family courts are failing the American family. The present family courts are not only an impersonal, inhumane system of production-line justice, they fail to help people at one of the most critical points in their lives. All too often, those who the law requires to go through the system are worse off at the end than they were when they entered it. What is the process that we make divorcing parties go through? It is not a process in which the judge is a helper. Rather, he or she is a parent who imposes decisions on the parties as if they were children. Worst of all, it is an adversarial system that not only allows people to fight, it encourages it, even for those who do not want to fight. It is a system in which we require every case to fit the system, not one where the system is flexible to fit the case. How else is our system deficient? It is far too expensive, especially in requiring numerous wasteful and unnecessary hoops to jump through. There is too much delay. There is virtually no early intervention to help reach rapid resolution. These cases too often are out of control because no one is in charge, but judges do not have the time to do case management and mediation. The system is also a failure of administration. The length of a judge’s service in the family law assignment is too short, often just one year in a field of law that has gotten so complex it takes much more than one year to master the assignment. The calendars are extremely high volume with too few judges assigned — most of whom do not really want the assignment — and with no support staff. It is no wonder the assignment leads to burnout. Let’s face it, there is also a bias against family law in the court system. It is too often the newest judge with no prior family law experience who is placed in the family law assignment, and who leaves the assignment as quickly as possible. There is a bias in the allocation of judicial resources. In our eight largest courts today, approximately 6 percent of their authorized judges are in family law assignments. A DISGRACE What makes this bias against families so disgraceful is that all of our political leadership, from the president to the governor to our chief justice, speak of families as our society’s most important resource. But I conclude this is just rhetoric. Priority in our system is given to insurance companies from Hartford or someone who burglarizes a home, not to California families. Twenty-six years ago, Fourth District Court of Appeal Justice Robert Gardner, in In re Marriage of Brantner, wrote: “Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the-totem-pole treatment, quite often being fobbed off on a commissioner. � [W]e begrudge the judicial resources necessary for careful and reasoned judgments in this most delicate field — the breakup of a marriage with its resulting trauma and troublesome fiscal aftermath. The courts should not begrudge the time necessary to carefully go over the wreckage of the marriage in order to effect substantial justice to all parties involved.” Earlier this year in In re Marriage of Settlemire, Second District Court of Appeal Presiding Justice Arthur Gilbert wrote, “[S]ome judges view a family law assignment as a banishment to the lower circles of judicial inferno.” And in a section that was later removed from the opinion, Justice Gilbert had also written: “It is a fact of judicial life that commissioners are often given assignments that judges do not want to perform. Some stalwart judges embrace the demands of a family law assignment. But to others, family law tops the list of assignments to eschew.” Two recent Judicial Council Advisory Committee reports have both recommended that, aside from some limited family support matters, adjudication of family law issues is a core judicial function and should be performed by judges, not court commissioners. But this does not happen and will never happen until the rhetoric ceases and action occurs. 15 PERCENT SOLUTION So what do I propose as a better way? Our state constitution should be amended to create a separate Family Law Division in every court with 10 or more judges, consisting of a number of family law judges equal to 15 percent of the number of judges presently authorized for each court. Judges in this division would serve as family law judges for the duration of their career. Substantial professional experience in family law would be required to be eligible for appointment. Each judge, in addition to normal courtroom staff, would have a second courtroom clerk and a law clerk. Additionally, each judge would have an administrative assistant or paralegal who serves at the pleasure of the judge. There would also be subordinate judicial officers for more limited family law duties. In this new Family Law Division, the process should fit the case, not vice versa, and should include a greatly simplified process for less complex cases. As authorized by Family Code Section 2451, the process in this division would be a mediative one, helping the parties to resolve their own disputes and providing for hearings only when an impasse occurs. This is a process I use as a private judge, and it is truly remarkable how rare it is that I ever have to make a decision. This fits my concept of the family law judge — the primary role is as a helper, not a decision- maker. It is time to stop giving lip service about how important families are in our society and put our money where our mouth is for divorcing families required to go through our court system. Is this a pipe dream? Maybe it is during the present budget crisis. Is it impossible? No. Does it already exist anywhere? Yes. We do not have to look far, just across the state line. About 10 years ago the voters in Nevada passed a constitutional amendment creating a separate Family Law Division in the courts in that state’s two largest counties, Washoe and Clark. These judges serve in that role as a career and each has the additional staff I propose, including a second courtroom clerk, a law clerk and an administrative assistant. In Washoe County, with a population of only 200,000, the Family Law Division of the court consists of six judges and seven subordinate judicial officers. In Clark County, with a population of about 1.5 million, of 33 judges on the court, 12 are in the Family Law Division, which also consists of nine or 10 subordinate judicial officers. For the benefit of California’s families we must improve our family law system to be one that helps people at a time in their lives when they need help the most. Those within our family law court system must lead. There is an old Alaskan saying, and they are not talking about dog sleds. “Unless you are the lead dog, the view never changes.” Unless the Judicial Council and the family law bench and bar take the lead to find a better way for our family law court system, nothing will change, and 25 years from now some future appellate justice will once again be quoting Justice Gardner decrying a court system that “begrudge[s] the time necessary to carefully go over the wreckage of a marriage in order to effect substantial justice.” Justice Donald B. King is a retired First District Court of Appeal justice who now works as a private judge through the American Arbitration Association. As a superior court judge, he worked in family courts for six years.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.