Parenting Plans: A Better Way

The Elkins Family Law Task Force and Custody of Children

In 2006, Jeffrey Elkins sued the family law court of Contra Costa County for they way they treated him.  He had represented himself in court.  The court had many special rules for presenting evidence in a divorce.  Jeffrey did not follow them all.  The court rejected 14 of 36 exhibits, and wife got what her lawyer asked for.

Jeffrey won on an appeal.  The Supreme Court of California said, “you can’t do that to Jeffrey,” adding in a footnote that the Judicial Council ought to look to all the family courts of the state with a task force that included judges and lawyers.

In spring 2008, the judicial council appointed 38 judges, lawyers and court employees to a task force named Elkins.  The task force accepted and retained all comments sent to them by email.  At first, for the public meetings, in San Francisco and Los Angeles, they allotted 15 minutes for the public to talk.  That is, 15 minutes total, no matter how many people signed up in advance to address them.

It was soon obvious that people wanted to tell the task force their stories, so a special session was set in San Francisco.  Commencing at 10:00 a. m. and ending near 5:30 p. m., with only a 30 minute lunch, the judges, lawyers and court employees heard 35 people tell of custody cases.  No one came to talk about property issues.  Only three speakers were men, one an agency director and one a politician,  plus one 14 year old boy; the rest were women.

At a public hearing in Los Angeles for comments on a draft report, the room was again filled mostly with women speaking of custody issues; one man who talked of abuse through the custody process when he was a child; and just one woman who suffered severe property takings through an abusive divorce process.

One woman said she had 150 court hearings over the course of 11 years at her cost of $200,000.  Another said her mother-in-law swore that she, the husband’s mother, would get the woman’s  house and her children, and in two years, the mother-in-law had succeeded in accomplishing that.

The boy told that the “master” appointed to oversee visitation told him that if he refused to see his father, his mother would lose custody and the boy would end up in foster care where “people are not always nice.  Sometimes children die in foster care.”  His mother refused to believe that an adult would talk that way to a child, so the boy carried a tape recorder and proved what was being said.

“The system forces you into combat,” said one woman.  She suggested that when people with children file for divorce, they immediately be assigned an appointment to work out a parenting plan.  “Most parents can do that,” she said, “Before the court hearings start complicating issues.”

The minority of other parents, she said, should be assigned to a parenting team to control and guide the process to arrive at an appropriate parenting plan.

An eminently simple and logical solution to a most vexing problem.  Who could object to this workable plan?  The courts already have self-help centers and parenting plan mediators and a staff of trained parenting investigators.

It might work like this:

1.  Wife and/or husband decides to file for divorce.  Filing in person is required for people with children, and the courts will be open one night a week for this purpose.   One or both make an appointment with the Family Relationships Facilitator’s office which will provide them with an outline of all possible matters to be considered in establishing two households for their family, and the guidelines for decision-making.

2.  Each will then answer a detailed questionnaire designed to determine suitability of the couple for mediation or arbitration.  Assistance for each person in her primary language shall be
provided as needed.  Each questionnaire shall be reviewed by a facilitator before a person signs and files it.  These questionnaires shall be confidential.

3.  The answers will be reviewed by a triage committee which will assign the family to  mediation or arbitration and domestic violence proceedings if appropriate but not already initiated.  No case involving domestic violence, verbal abuse or other intimidation on the
part of one party toward the other will be assigned to mediation. Rules of confidentiality shall apply to the mediation process.

4.  The couple or either party may then file a petition for dissolution of their marriage.

5.  The couple will be assigned an arbitrator or mediator.  Each family will have two mediators or arbitrators, one for issues regarding a parenting plan (formerly termed custody), one for property and support issues.  Mediators and arbitrators shall have appropriate training and experience in their respective areas.

6.  Both arbitrators and mediators will have a rotating  panel of experts available for appraisals and forensic accounting, and questions regarding parenting plans as necessary.  Each party may without stated cause reject the first expert assigned; the second or subsequent expert may be rejected upon cause, the determination of which shall be assigned to a hearing officer.

8.  Each party may be assisted by an advocate in the arbitration process.  The arbitrator may assign a particular issue to an evidentiary hearing officer.  A party may request an evidentiary
hearing on a particular issue, and that request for a hearing shall be granted or denied by a three-person panel.

9.  When agreements or decisions on all issues have been reached, reduced to a writing signed by the parties and their mediators or arbitrators, the terms of those agreements or decisions shall be written as a parenting plan judgment by a trained clerk, reviewed by a hearing officer and any consultants hired by either party  and then signed by a judge.

10.  Qualification and appointment of hearing officers remain to be determined.  All panels shall have at least one woman and one man as members.

11.  The above procedures, adapted as appropriate, shall apply to all other domestic relations matters involving children as currently assigned to “Family Law.”

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