ARTICLES/CASES

Bill Fingerett Discusses the Impact of the Elkins Task Force on Family Law Proceedings

Bill Fingerett

In 2007 the California Supreme Court decided the case of Elkins v Superior Court. One comment from a Justice in the Elkins case is that "family law litigants should not be subjected to second-class status or deprived of access to justice ... The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings." In response to the decision in Elkins the judicial council's Elkins Family Law Task Force was established. The Task Force was to study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for family law litigants. In response to the need to provide litigants with the opportunity to testify at hearings on requests for substantive relief and to provide judicial officers with the information they need to make an order, the Elkins Family Law Task Force recommended that live testimony be allowed in any hearing on an order to show cause or motion brought under the Family Code, absent a stipulation of the parties or a finding of good cause by the Judge.

Effective January 1, 2011 Section 217 was added to the Family Code. Family Code Section 217 requires the court to receive live testimony that is competent, relevant, and within the scope of the hearing from the parties and other witnesses. It also sets out the requirement that parties seeking to present nonparty live testimony must file and serve a witness list or make an offer of proof with a brief description of the anticipated testimony. The rules under Family Code Section 217 are to be adopted by January 1, 2012. The Family and Juvenile Advisory Law Committee and the Elkins Family Implementation Task Force recommended implementing Rules of Court related to live testimony as soon as possible so that courts, attorneys and litigants will have appropriate guidance. It is important to note that neither the statute nor the proposed rules eliminate judicial discretion to refuse to receive live testimony. Proposed Rule 5.119 sets out factors that the court must consider when making that decision. Proposed 5.118(f) sets out the parameters for length and content of declarations supporting orders to show cause and motions brought pursuant to the Family Code.

What does all of this mean? Most likely it means that obtaining interim orders may be more expensive and result in longer waiting periods to present contested issues to a judicial officer. Until local and state rules have been implemented, and a few cases wind their way through trial courts and appellate courts, the purpose of Family Code § 217 to achieve efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants is a work in progress.

To contact Bill Fingerett, email him at: wfingerett@fmbklaw.com, or call him at 310.447.8675 ext. 211

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