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Summer gives us all a little time to contemplate, and so we thought we might discuss what the future is likely to hold for practitioners of family law. It is a question that is important to those of us involved in the training of future lawyers, but should be of equal concern to those currently practicing. We will look at some of the trends in the practice and attempt to predict future directions. A crush of family law cases, and very scarce resources The level of filings of family law cases continues to be high, with no significant change in sight. In some states fully one-third of appellate decisions are in the family law area. Unfortunately, this takes place against a backdrop of reduced funding for sufficient judges and auxiliary staffing to process these cases. In addition, many divorce litigants are challenging the current court processes. In the state of New York there is a Matrimonial Commission that has been taking testimony from litigants, lawyers, judges and mental health professionals. Many lawyers have questioned the cost of litigation, as well as the need for auxiliary services such as psychological evaluations and law guardians for children who are not of sufficient age and maturity to direct their lawyers. There is also concern about “recommendations” made by mental health professionals, as well as access to effective and speedy justice in the courts. Academics are also looking toward the future. Last year, a Family Law Curriculum Reform Project that includes family law professors from around the country was formed to discuss ways to train future lawyers for the changing nature of domestic practice. Against this backdrop we will address some of the areas of matrimonial practice in the year 2015: custody proceedings, court-annexed services for children and parents, trials of family-related issues and the continued use of alternative dispute resolution mechanisms. Further, we will also discuss the treatment of opposing counsel, as this continues to be an area of concern for many involved in matrimonial law practice. Lengthy trials as we know them today before elected or appointed judges will probably not be the norm. Trials are more likely to take place before auxiliary court staff (magistrates or commissioners perhaps) or before multidisciplinary panels that will make recommendations to a judge or will issue “advisory” opinions for the parents. The parent not willing to accept the “ruling” would then have some recourse to judicial review. Several mechanisms already in place to reduce the number of litigated child custody cases will no doubt be adopted by many jurisdictions. These include the use of a parenting plan, which is a detailed schedule proposed by parents setting forth how the child will be cared for after they are no longer living together. These parenting plans (such as the one that the American Academy of Matrimonial Lawyers recently promulgated) will be required and parents will be called upon to present their plans to the court early in the litigation process. Courts will also need to develop simplified or streamlined parenting plans for those increasing number of parties who will be self-represented. The concept that parents should try to structure their children’s future schedule and plan for the legal incidents of child-rearing will be common. Early intervention and identification of bona fide custody disputes will be the norm. As it is now, a small percentage of high-conflict cases utilize a significant amount of court resources. Most jurisdictions now require some type of parent education classes to advise parents on how to effectively help their children cope with the changes that the divorce will bring. In addition to these basic education programs, which sometimes also include the children, there will be more comprehensive programs to deal with high-conflict families. Some Kansas courts are already using such a system. Some courts may wish to use a type of post-judgment parent coordinator. There are, however, critics of some systems currently in place. The critics argue that if the person responsible for monitoring visitation and other post-decree parenting disputes is not a court-annexed, well-trained and regulated professional, the process may simply result in denying parents access to the courts. Some believe that that post-judgment issues need to get back to the court that made the initial determination expeditiously so that a judge can make an effective pronouncement. The weight of the judicial office often carries with it the ability to end further disputes and this may not be attained by parent coordinators who try to mediate and arbitrate post-judgment disputes. There are also concerns about improper delegation of authority that will need to be addressed. Access to courts will be streamlined. Lawyers may be required to make detailed offers of proof as to what they intend to establish at trial and courts may make rulings on the efficacy of the intended proof. Lawyers also are likely to be required to set limits on how much time they may spend in their direct and cross-examinations, a practice that currently exists in some states for both hearings and trials. It is likely that the practice of limiting changes in a child’s placement will continue. This is often done through legislative enactments that limit the ability of a parent to request a change in the child’s status for a set period of time after an order has been entered, barring extraordinary circumstances. It is likely that a post- judgment proceeding will require some proof of substantial, unanticipated changes of circumstances to entitle a litigant to a new hearing. For instance, a child wanting more time with the nonprimary parent will not be sufficient to obtain a hearing on the matter. Custodial evaluations that take months (or longer) where there is no significant psychopathology of either parent or the child will be severely curtailed, if even available. In those cases it is more likely that a treating therapist (for the adults or the child) will be testifying at trial. The use of guardian ad litems appointed by the court to represent the child will continue to be an area of concern both for guardians and parties. The statutes or rules of many jurisdictions authorizing the appointment of guardian ad litems continue to be confusing. Is the guardian’s role to represent to the court the child’s stated wishes (as an attorney for an adult would be bound to do) or is it to recommend to the court a course of action that the guardian believes to be in the best interest of the child? This question that has already received much attention will continue to be raised. It is hoped the experience of the past will inform legislatures and courts, and those attorneys appointed to serve as guardian ad litems will receive better guidance. Similar to custody litigation, counsel for parties involved in divorce cases may be required to make written or oral offers of proof to get trial time and the time for trials may be severely limited. Trials may be held before court magistrates, rather than judges. Affluent litigants may opt to proceed to trial before “rent-a-judges,” where they can obtain consecutive trial days and the full attention of a former judge or a respected professional who presides over their case. Under these statutorily authorized processes, litigants preserve their appellate right to review determinations. Access to courts will probably be simplified Access to the courts will probably be simplified with streamlined case-management procedures and new audio-visual mechanisms. Court conferences are likely to have all counsel and clients in their offices or homes as they “hook up” with the courts. This will significantly reduce the waiting time and the down time at courthouses. Face-to-face, in person, contact with a court probably will be significantly reduced and court personnel will be able to turn their attention to other matters if there is electronic delay on various proceedings. Various forms of alternative dispute resolution will become the norm. In this area the research on procedural justice will be important. That research tells us that what litigants want is an opportunity to express their concerns to a third party with some control over the manner of presentation, to have those concerns heard and to be treated with respect. The presence of a neutral decision-maker does not appear to be a necessary factor for the parties to believe that they have received a fair process. Relying on this body of research we are likely to see more cases referred to mediation. It is also likely that more states will be open to considering the use of binding arbitration in cases that involve not just property issues but issues concerning children as well. Given the amount of attention focused on the behavior of attorneys, we are more likely to see the adoption of “codes of civility.” Unfortunately, this problem, while it exists in all areas of practice, seems more significant in the area of family law. It may be that matrimonial lawyers, because of the suggestions of their clients or because of the volume and emotional intensity of the practice, take on some of the worst demeanors of their clients. This in turn causes them at times to become inappropriate toward opposing counsel (or even worse toward the court). Sanctions will have to be appropriately imposed by courts in the proper situations so a message is sent out to the bar that we must regulate our own conduct. In order to prepare for the changes ahead, laywers should begin now to think about the processes we described. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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