The buzz in California Family Courts these days is how much the rules of engagement have changed since the implementation of certain family codes that went into effect January 1, 2011, pursuant to the recommendations of the Elkins Task Force. In fact, two well known Los Angeles County Superior Court judges, who were recently asked to be guest speakers at our Pasadena Bar Association Family Law Section monthly meeting, are adding to the buzz by choosing to speak on topics related to the new laws.
Last month, Judge Thomas Trent Lewis spoke to our group of Family Law attorneys for an hour concerning the impact that recently enacted Family Code Section 217, which provides in part: "At a hearing on any order to show cause or notice of motion . . . , absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties."
During his presentation Judge Lewis opined that the impact of this change to our law will be huge. Judge Lewis predicted that the way in which family law matters are litigated will be changed because in most cases courts must allow parties the opportunity to have actual hearings, where witnesses are called and evidence is introduced, even when parties are seeking interim orders on issues of child custody, support, and attorney's fees. In the past, Family Law Courts in California issued temporary orders primarily based on reading of declarations, pursuant to a case entitled "Reifler v. Superior Court."
Many critics (including members of the Elkin's Task Force) complained that justice was not served when the court did not have evidentiary hearings. Often it was the party who wrote the best declaration that had the upper hand, even if the statements were untrue, since that party was not subject to cross examination. Judge Lewis commented during his presentation that he has often changed his mind about a case after allowing cross examination and seeing who the real people are in the case.
On the other hand, Judge Lewis also commented on how this new law is likely to clog the system even worse than it is, given the budget cuts and the lack of Family Law courtrooms. In the past litigants in a Family Law case could obtain interim orders usually with making only one court appearance. With this new system, however, it will probably take days to get through a hearing.
In my opinion, the change of law is good for our system, as I believe the truth is lost when we litigate by declaration. I have seen so many cases in my years as a Family Law Attorney, where the Court was misled because of declarations that hide the truth. I do not like a system where people hide behind their attorney. Hopefully with this new system, we will get better results in Family Court.
As to our other Judge - Judge Juhas, he will speak this month on how the new law will change the role and practice of Minor's Counsel. We expect Judge Juhas will focus on Minor's Counsel drafting of declarations and presenting live testimony in compliance with the new rules, including what kind of live testimony is required and how to provide notice of third party witnesses and their testimony. Judge Juhas is also expected to discuss the changing role of minor's counsel, how and when a child should testify, case management, and how to get attorney's fees under the new law.
Judge Mark A. Juhasreceived his B.A.in 1976 from Colorado College and his J.D. in 1979 from Seattle University. He is currently a member of the California State Bar. In 2006 he joined Southwestern University as an adjunct professor. He was appointed to the Los Angeles Superior Court in 2002. Prior to that he was in private practice as a partner with Harrington, Foxx, Dubrow & Canter. He is currently assigned to family law in downtown Los Angeles. Immediately prior to his current assignment, he presided over a family law department in Antelope Valley where he initiated an innovative Pro Per Day Calendar that brought support from the family law facilitator and self-help center into the courtroom to assist self-represented litigants. Most recently he was assigned to the Elkins Task Force.