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The UCtelevision program “Access to Justice in Family Court” embedded below features a panel of 5 legal professionals filmed on November 14, 2008, discussing the problems of access to justice in California family law courts. The primary focus of the discussions is the problems of providing court services to unrepresented litigants which comprise 70% or more of those in the family law courts in the state. This includes a discussion of “limited scope” representation in which parties can get help from attorneys without fully engaging them for hundreds of hours of work. This video is worth a watch for anybody interested in the family law system in California.

Panel Participants

• Marvin R. Baxter – California Supreme Court Justice
• Bonnie R. Hough – Managing Attorney for Center for Families, Children, and Courts
• Laurie D. Zelon – California Court of Appeal Justice in Los Angeles District, head of Elkins Family Law Task Force
• M. Sue Talia – Family Law Attorney and Author
• Richard R. Banks – attorney and law professor at Stanford University

State Sets Up New Family Law Judges for Failure

Justice Baxter pointed out that new judges are often assigned to family law cases initially. Further, these new judges often get the most difficult cases dumped on them yet many have not had any experience with family law, not even as attorneys. He believes that this sets them up for failure and to provide poor service to the litigants. He spoke as an example of a new judge who resigned after one week on the bench because his first case which was a very difficult child custody dispute for which he was not prepared.

Family law judicial assignments are often very unpopular, yet are viewed as “doing the time” on the way to a better assignment in civil or criminal court. Perhaps this is part of why family law courts work so poorly.

“Unrepresented Masses” Are Huge Potential Profit Center

Most of the panels participants look at the “unrepresented masses” as a huge base of people from which they can make more money. In the recommendations coming out of the Elkins Task Force, they seem to be looking at ways to virtually force both parties to use attorneys by awarding legal fees near the start of the case. If that won’t generate enough additional profit for lawyers, then perhaps they can find a way for the government (therefore taxpayers) to pay for lawyers for people who can’t afford them. Zelon seems to be focused on getting more lawyers involved to do more litigation for more people rather than making the system more efficient and avoiding conflicts.

Change Family Law to Reduce Need for Lawyers

Professor Richard R. Banks had a very different viewpoint than most of the panelists. He suggested that perhaps the many problems in family law courts stem from too much involvement of lawyers. He opined that the goal should be to get the courts and lawyers out of divorces except for certifying that settlements are reasonably fair and in compliance with the law. He pointed out that it is very common once lawyers get involved in a child custody battle for 50% to 70% of a family’s net worth to be eaten up by litigation. He also said that it appears that the agenda of lawyers is often at odds with the needs of their clients.

Disturbingly, Zelon and Talia (to a lesser degree) were very much opposed to this idea of redesigning the family law system around getting rid of much of the need for lawyers.

Every one of the panel participants got a chance to speak without interrupt except for Professor Banks. As soon as he suggested that “less lawyering” may be the answer to fixing the broken family law courts, it was clear that some of the other panelists had no intention of letting him talk without opposing him immediately.

From watching this video, I was very much left with the impression that the citizens of California would have been far better served if Banks had been the head of the Elkins Task Force rather than profiteering Zelon. Zelon, by the way, has virtually no experience in family law. She admitted she’s tried only one family law case as an attorney and was never involved in family law as a judge.

Difficult Child Custody Cases Not Addressed

Disappointingly, there was nearly zero comment on the problems of high conflict child custody litigation and how it destroys children and families far more than more civil divorces. These cases are often driven by people who are in all likelihood mentally ill and unwilling to share their children, be honest, or do anything other than cause problems for their ex-spouse and children.

Such cases are often pushed to explosive crises by expensive lawyers who can’t manage difficult and dishonest clients. The many family law attorneys who are willing to lie for such clients make the situation worse. Failure to discipline and disbar these attorneys enables them to continue turning serious but solvable problems into life-destroying crises.

They are also enabled to create more destruction by judges incapable of doing their jobs. It is not simply the fault of the judges, they are often stuck applying laws that simply don’t work in a system that is overwhelmed by false accusations of domestic violence and child abuse, frequent perjury, expensive yet frivolous battles, and expensive yet ineffective experts who manage to cause more problems possibly more often than they solve anything.

Further Reading

Stephen Doyne and San Diego Family Law Courts Under Fire

California Legislature Orders Investigation of Family Law Courts

Unconstitutional Child Custody Decisions

Holding Family Law Judges Accountable

California Family Law: Elkins Task Force

Observer’s Notes from Elkins Task Force Meeting on April 6, 2009

The Elkins Family Law Task Force, chaired by Associate Justice Laurie D. Zelon