Family Means No One Gets Left Behind or Forgotten*

Berkow_Josanna_webFifty Years of Expanding Rights and Responsibilities

We start with a brief reminder of just how far we have come in expanding the rights and responsibilities concerning children and families over the past 50 years in key areas of parentage, custody and visitation, family violence, support, marriage and divorce. 

Beginning with parentage, we’ve moved from laws under which a child born outside of marriage had no legal standing to make any claims, to the Uniform Parentage Act, which removed all legal incidences of illegitimacy and significantly expanded legal bases to establish paternity. Artificial reproduction technology has advanced to provide new opportunities to become a parent with legal complications for all involved in the process.

Kin guardianships are now recognized as a more permanent option where adoption is inappropriate or unavailable, and juvenile courts now facilitate earlier assessment of children for adoption. Under a new law effective just this year, where more than two people have claims to parentage, a California court can (if not to do so would be detrimental to the child) recognize that a child may have more than two parents.

Custody awards favoring one parent have evolved to become more consistent with our modern view that children are generally better served by significant time with both parents. Where ending close relations with grandparents, stepparents or previous guardians would cause detriment to a child, we have created limited visitation rights for these significant others.

We’ve gone from unawareness to training both police and the judiciary to recognize and prevent family violence. We’ve created protocols to make all divisions of the court work together for effective enforcement of civil and criminal restraining orders. We’ve also become increasingly more aware of elder abuse by family members and caregivers, and the unique crossover issues litigated in criminal, probate and family divisions of the court.

As to support, we’ve gone from unpredictable child support awards to the establishment of mandatory uniform guidelines based on the relative financial and custodial situation of both parents. We’ve also increased the levels of support actually provided to our children by tying a state’s welfare grant to its success in collecting child support obligations.

In the area of divorce and marriage requirements, as of 2010, all states now recognize no-fault divorce. For several years, California has required mandatory financial disclosure in all dissolution actions and has confirmed that spouses owe a fiduciary duty to one another. While maintaining the right to regulate marriage as the provenance of the states, states may not deny marriage based on race or failure to pay child support.

Late last year, the Supreme Court ruled in the Windsor case that federal law cannot preclude a state’s right to permit same-sex marriage and will soon have to determine whether a state may constitutionally prohibit marriage based on gender or refuse to honor the decree of another state that permits it.

More Rights, More Cases and Fewer Resources

The expansion of family rights and responsibilities has led to concomitant increases in the number and nature of family disputes addressed by the courts. The final report of the Elkins Commission, established by the California Administrative Office of the Courts, was published in 2010 and  acknowledged that California courts were seriously understaffed with an unsupportable workload of 1,025 new family law cases per judicial officer. This statistic did not include the significant number of unresolved actions in cases filed in previous years.

The Elkins Commission recommended a 39 percent increase in judicial officers to manage the workload. Although courts have made improvements in developing self-help centers and expediting some aspects of case management, the fundamental challenge of understaffing exposed by the Elkins Commission remains unaddressed today and has been significantly exacerbated by the last three years of brutal budget cuts.

Unlike Juvenile Court, where all parents and children are provided court-appointed counsel, 75 percent of all Family Court litigants are self-represented. The situation has been worsened by the reduction or elimination of many low-income legal assistance programs and budget cuts to the office of the Family Law Facilitator that each county was mandated to establish in 1996, in order to provide self-represented litigants assistance with spousal and child support.

The results have been frustrating for everyone. Without the benefit of representation, litigants make increased demands for information, make more filing errors, and appear for hearings unprepared and with unreasonable expectations based on a lack of knowledge of the law or courtroom protocols. Judges spend far too much of their precious time and resources dealing with these cases.

Those litigants with the means to avoid the delays inherent in this underfunded, understaffed court system find relief outside the courts by hiring private mediators, custody evaluators and judges, creating a two-track system of justice: One for those with the means to purchase a speedy resolution to disputes and one for everyone else. When our hard-won family rights and responsibilities are handled so inadequately, they become illusory and everyone’s faith in our system of justice is dangerously undermined.

We Must Fund and Improve

We cannot reverse the expansion of family rights. Dr. King has counseled that “the arc of the moral universe is long, but it bends towards justice.” But this justice arc requires community action that uplifts rather than degrades us. We need to restore faith in our courts’ ability to meaningfully enforce modern family rights and responsibilities and ensure everyone equal access to justice. Above all, this will require a commitment to provide courts adequate funding for family disputes.

However, funding alone is insufficient. We must also rethink the adversarial system that we’ve had in place for over a century. New legislation is required to expand the current mandate for pre-hearing mediation of custody issues to all family disputes, with the exception of family violence. This new resolution process should utilize paralegals for proper triage and mediating attorneys working with collateral experts appointed by the court as neutrals on specific issues involving child development, parenting, accountants, actuaries, property valuation, vocational evaluation, substance abuse assessment, medical examination and more as needed. The new process should draw from existing private cooperative and collaborative practice that is presently beyond the financial reach of most family litigants.

For matters unresolved by mediation, we need legislation that would establish actual consequences for the small percentage of repeat litigants that clog up the process and squander increasingly scarce court resources. One approach to consider in this regard would be to require courts to screen for non-emergency matters filed by “frequent filers.” There are also feasible ways of discouraging frivolous or abusive repeat filers, including the creation of a separate calendaring system (slow rather than fast track) and the imposition of evidentiary and financial sanctions.

It is imperative that we preserve the progress that has been made and secure hard-won rights and responsibilities for our children and families. To remedy the erosion of confidence in our court system and avoid further miscarriages of justice, we must ensure meaningful enforcement of these rights by guaranteeing adequate funding and by acting together to secure more effective dispute resolution processes. The plain truth is that rights and duties are not enough—society must also provide the means to vindicate those rights and enforce those duties. Only then will family truly mean that no one gets left behind or forgotten.

Commissioner Josanna Berkow retired in 2013 from the Contra Costa Superior Court after 20 years on the family law bench and currently works as a private judge offering lawyers involved in family disputes an alternative to standard court process based on mediation. She is also an adjunct professor at the John F. Kennedy College of Law in Pleasant Hill, where she serves as faculty advisor for a new specialized curriculum that she developed titled Children, Families & the Law, and at Golden Gate University School of Law in San Francisco, where she teaches a new course titled Alternative Dispute Resolution for Children & Families.

 *Quote by David Ogden Stiers

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