January 31, 2000

FOR IMMEDIATE RELEASE

SUBJECT: SANTA CLARA COUNTY FAMILY COURT
A PROTOCOL FOR CHANGE

Background

Family Court is one of the busiest and most significant divisions of the court. For many people, their only contact with the court system may be Family Court. The issues involved in Family Court include custody of children, child support, domestic violence, spousal support, and the division of property. Over two thirds (2/3) of the litigants in the Family Court represent themselves in court.

In January, 1999, as Presiding Judge of the Superior Court, I formed a committee, Chaired by Judge Mary Ann Grilli, later Co-Chaired by Judge Read Ambler, comprised of judges, commissioners and lawyers, to review the Family Court, its operations, rules and procedures to determine whether there should be systemic changes. That committee, along with its three subcommittees in the areas of custody, rules and procedures, and self represented parties, met frequently over the past year. In addition, members of the committee, with the assistance and participation of Dr. Susan Hanks, from the Administrative Office of the Courts, held confidential public input sessions over a six day period. The committee has provided me with a great deal of factual information and has made a number of recommendations for changes.

After considering all of the recommendations and information presented, the following changes in the Family Court Division of the Superior Court either have been or will be implemented as soon as possible:

1. ADDITIONAL JUDICIAL AND STAFF RESOURCES

Additional judicial officers will be added to the Family Court Division. A fifth full time judicial officer will be added when the court is at full strength (retirements will leave the court short six judicial officers as of December 31, 1999 and eight short as of March 7, 2000) and when we have space for an additional full time direct calendar judge. As an interim measure, an additional judge, Judge Thomas Cain, will hear the Civil Harassment/Workplace Violence and Domestic Violence/No Minors calendars, which are heard on Fridays, commencing January 21, 2000. Initially, these calendars will remain at Park Center Plaza, but the Civil Harassment/Workplace Violence calendars will eventually be heard in the Civil Division, once appropriate staff are designated and trained for these calendars. This will provide more time to the Family Court judges for matters on their direct calendar caseload.

In addition, Judge LaDoris Cordell will hear some long cause (more than one day) custody/visitation matters and Judge Leslie Nichols will hear some long cause property and support matters. A new long cause protocol will be prepared for the court's use.

Additional court staff will be assigned to the Family Court to relieve some of the burdens which have been caused by short staffing in the division.

2. EXPANSION OF ADR AND BAR ASSOCIATION PARTICIPATION

The Court will work with the Santa Clara County Bar Association and other legal associations and entities to expand the Judge Pro Tempore programs at the Family Court. Currently, members of the bar provide assistance on a daily basis to the Family Law Division, in settlement conferences, mediations, and arbitrations. With the assistance of the bar association, the court will attempt to create an Early Neutral Evaluation program with volunteer attorneys assisting the parties in evaluating the issues in their cases. The Court is encouraging grant applications by Legal Aid, Community Legal Services, and other agencies to assist lower income parties who have matters in the Family Law Division of the court. The court will also seek increased funding to add lawyer facilitators to assist the parties in resolving their cases at an early stage in the litigation.

3. EARLY CASE MANAGEMENT AND CASE PROCESSING

The Family Court is committed to managing its cases at the earliest opportunity in order to assist in the resolution of cases in a timely, efficient, and less costly manner. Currently, Case Management Conferences are held only after the filing of an At Issue Memorandum, indicating that a case is ready to set for trial. The Family Court will establish a differential case management pilot project. Every case in which a Response is filed or an appearance is made on a Law and Motion matter (other than a motion to modify) will have a Case Management Conference within 60 days of the filing of the Response or first appearance by the responding party. The court will consider management issues involving cases where no response is filed.

Parties will be encouraged to accomplish service of process within 60 days of the filing of the Petition or Complaint.

Under current rules, all initial child and spousal support matters are to be set on the Law and Motion calendars within 30 days. Effective January 10, 2000, all custody and visitation matters, including modification motions, will be set within 30 days, absent the request of a party for a later date for good cause. Once a fifth judge is in place, all Law and Motion matters will be calendared within 30-45 days, absent good cause requests for longer settings. After the first continuance of a Law and Motion matter, which should not exceed 30 days, continuances will only be granted for good cause.

Trial dates will be set within a reasonable time, depending upon the nature of the case and the discovery to be conducted. Trial dates will be continued only for good cause. Failure to complete discovery in and of itself is not to be considered good cause for a continuance, but the reasons discovery has not been completed may constitute good cause. Custody cases have statutory preference and every effort will be made to expedite the completion of those cases.

The court will develop a written protocol setting forth standards for the implementation of the above and Local Rules consistent with the protocol will be prepared for adoption by the court.

4. FAMILY COURT SERVICES/CUSTODY PROCESS

A. Screenings

Effective January 4, 2000, emergency screenings will be available five days per week through Family Court Services. In the past, emergency screenings had been available only four days per week and Friday screenings were not available. By definition, emergency screenings involve emergencies, which are urgent issues affecting minor children. In order to better serve the children and parties involved in custody and visitation disputes, screenings will now be available on Friday mornings, in addition to the other four days of the week.

B. Wait for Assessments

All reasonable efforts will be made by the Court to shorten the wait for an appointment at Family Court Services for an Assessment. Eight months ago, the wait for an assessment appointment was approximately 20 weeks. Currently, the wait is under 5 weeks. The court is committed to further reducing the wait.

C. Organizational Audit

The Court will employ an outside consultant/auditor to audit and evaluate the entirety of operations of Family Court Services to assure that it is functioning fairly and efficiently.

D. Parent Education

A Parent Education program will be developed and implemented for parents involved in custody or visitation matters in the Family Court.

E. Outside Custody Evaluators/Assessors

The court from time to time appoints private mental health professionals in the community to perform custody evaluations and assessments and to report to the court in writing and occasionally to testify. The court will maintain a list of qualified outside mental health evaluators, with appropriate specialties, who may be appointed in Family Law matters. Any qualified mental health professional who meets the standards established by the court may be placed on the court's list and appointed in particular cases. The Court will ensure that each such evaluator is qualified to perform such evaluations, in accordance with state and national standards for conducting custody evaluations. Evaluators will be appointed from the list based upon the professional's specialties but also taking into consideration some reasonable rotation so that all approved evaluators will have an equal opportunity to assist the court. The Court will undertake, in conjunction with other agencies, to provide training in custody evaluations, the ethical obligations inherent in custody evaluations, conflicts of interest, rules regarding ex parte communication, and as well as statewide standards and rules of court. Custody evaluators and assessors will be under an obligation of full disclosure to the court and the parties regarding prior relationships and/or other factors constituting a conflict. No evaluator will be permitted to act as a therapist or perform any other role for any of the parties or their attorneys.

Absent a stipulation between the parties, the appointment of a custody evaluator/assessor will only be made following a hearing at which the parties will be given an opportunity to object to the referral for evaluation/assessment and the identity of the evaluator. By stipulation, such appointments may be made at Early Resolution Conferences.

F. Time for Completion of Evaluation/Assessment

All custody evaluations or assessments shall be completed within 60 days of the filing of the order appointing the assessor/evaluator. The Court may extend the time for good cause shown.

5. SPECIAL MASTER APPOINTMENTS

Special Masters for custody and visitation issues will not be encouraged by the court. In recent years, Special Masters have been appointed by parties and counsel to essentially act as private judges for issues relating to custody and visitation. These Special Masters have been both mental health professionals and attorneys. Special Masters have been appointed by the parties in many high conflict cases pursuant to such written stipulations between the parties and many of these cases have benefitted from such stipulations by providing the parties with a quick and efficient resolution of custody and visitation issues. However, there have also been significant difficulties with the Special Master process and the underlying authority for the appointments has been misunderstood.

The law is reasonably clear that the court has a non-delegable duty to make appropriate orders for child custody and visitation. References for custody and visitation are not authorized under Code of Civil Procedure §639. References under Section 639 are authorized only for factual determinations, such as the taking of an accounting.

On the other hand, the parties, by mutual agreement, may elect under Section 638 of the Code of Civil Procedure to enter into a non-reviewable reference to submit whatever issues they desire to submit to such referees. The decisions of the referees as to all property issues are final and generally can become part of the court's judgment without judicial review. While property issues may justify a binding reference under Section 638, a reference of custody and visitation issues is problematic. The Court has a responsibility to independently decide all custody and visitation issues and neither contract between the parties nor a Special Master or Referee can control the Court's decision in that regard. Accordingly, with regard to custody and visitation issues, if there is an objection to a proposed order by a referee or special master who has been designated by the parties pursuant to Code of Civil Procedure Section 638, the court is prohibited from giving effect to the order without making an independent determination following a de novo hearing during which the court must take evidence, and make a decision based upon the best interests of the child or children. The Court may not, under those circumstances, merely review the Special Master's decision and make a decision based on arguments of counsel or the parties because that would be an improper delegation of its responsibilities.

Thus, if the parties in the future wish to stipulate to the appointment of a Special Master or referee, such a reference will be deemed to be under Section 638 of the Code of Civil Procedure and the parties must be advised that, under most circumstances, the decisions of the Special Master are not subject to review by the Court, but that if custody or visitation issues are involved, such orders of the Special Master are not binding on the court if either party chooses to request a de novo hearing. Such a stipulation does not require approval by the court, but nevertheless the court may intervene if it determines that such an appointment or order thereunder is not in the best interests of the child. The court will develop a protocol for ensuring that parties who enter into such a stipulation will be fully advised of the consequences of such a stipulation.

Any pre-existing Special Master stipulation relating to custody or visitation heretofore signed by the parties and approved by the court which required court approval or confirmation of orders made by the Special Master will be reviewed upon the application of any party to the stipulation. It is in the best interests of the children who may be the subject of such stipulations that the court review with concerned parties whether the stipulation is serving the best interests of the children involved.

Local Rules will be amended in accordance with the above.

6. ATTORNEYS FOR CHILDREN

The court will develop a protocol for appointment of attorneys for children in Family Court. In accordance with state rules and standards, the protocol will include educational and other qualifications of attorneys to be appointed. The court will encourage as many attorneys as possible to obtain the necessary qualifications for appointment as children's attorneys and a flexible rotational system will be developed to allow more qualified attorneys to participate.

Attorneys for children will be appointed after hearings where the parties have been given the opportunity to state any objections they may have to such an appointment, as well as any concerns that they may have regarding the cost of such an appointment. The Court may schedule a periodic review of the continued need for a child's attorney.

The payment process for attorneys for children will be reviewed and revised.

7. SUPERVISED VISITATION

The court will encourage the establishment of a supervised visitation supervisor by the County of Santa Clara, in conjunction with the enforcement powers of the District Attorney's Office or other appropriate agency. In accordance with state rules and standards, ethical standards for supervised visitation monitors will be established, in order to ensure that any such supervisor is unbiased and does not have an allegiance to either party.

Supervised visitation orders, absent an knowing stipulation, will be made only after a hearing at which the parties may present evidence concerning the reasonable necessity of such orders. Absent good cause, such orders will not be for an indeterminate period, but shall have either termination dates or periodic review dates. The court will consider the economic circumstances of the parties in making orders for supervised visitation, in order to make every effort to assure that parents are not deprived of contact with their children due to a lack of funds. The Court will continue to endeavor to locate additional funding to subsidize supervised visitation for low income parties.

8. FAMILY COURT FACILITIES

Family Court facilities are inadequate for the functions it presently performs. The court is embarking on a quest for additional space. This process requires the participation of the County of Santa Clara, because the county is the provider of court facilities. The county has indicated a willingness to assist the court in this regard. It is the intent of the court to move the Family Court Commissioners from the main building and add a fifth direct calendar judge to the existing facility. A facility is sought in which to place the commissioners, along with other ancillary services, including administrative, clerical, conference rooms, and the like. It is desired that such space be adjacent to the existing family court building or that a new site be obtained for the entirety of family court operations, so that such operations can be in a single building.

The court is contemporaneously planning a twenty courtroom facility which, when completed, will contain all family court operations, as well as juvenile dependency courtrooms, and other uses. That building is probably five years from completion and, in the meantime, the court will continue to rely on leased space.

While in the existing space, signs at the Family Court facility will be updated to provide a more dignified appearance and shall, in addition to English, where reasonable, be in languages reflecting the population which uses the facility.

9. INTERPRETERS

The court is seeking several grants which will provide for interpreter services at the family court. This has previously been a non-mandated service that the court has not had statutory authorization to fund. This clearly represents a serious need from both the court's and litigant's standpoint.

10. SELF REPRESENTED PARTIES

A. Family Court Clinic Expansion

The Family Court Clinic will be expanded when space is available. The Court will seek the assistance of the bar association and other attorneys to provide pro bono services in the clinic or courthouse.

B. Family Court Information Center

The Court will establish a self service center that will make available information to self represented parties to enable them to have a better ability to participate in the court's processes, so that each will have a better understanding of the applicable law, and the rules of court. It is also the intent of the court to make forms available for use of self represented parties. The information and the forms will be available through the court's website, as well as at the court facility. The initial furnishings for the Information Center should be arriving in the first quarter of 2000. The self service center will ultimately encompass probate, juvenile, traffic, small claims, family, civil, and criminal areas of the court.

11. COURT ADMINISTRATION

Court administration will assign a single manager to have administrative authority over all clerical, administrative, and professional staff and employees of the court. All complaints about clerical and administrative functions will be ultimately directed to this manager, who will consult with the Supervising Judge of the Family Court and the Presiding Judge of the Court. Administration will endeavor to assign bilingual staff to family court as much as possible.

12. ONGOING EVALUATION

The Court will continue to evaluate the services it provides to the users of Family Court and make such additional changes as are required. It will also continue to seek information from those who use the courts and the public in general.

13. JUDICIAL ASSIGNMENTS

Judges will be encouraged to accept Family Court assignments for a minimum period of two years. All assigned judges will be expected to complete appropriate educational courses to qualify them to sit as family court judges. The Court will continue its educational programs for judicial officers assigned to the family court, along with programs for staff at the court.

January 14, 2000 Jack Komar

Presiding Judge