On So-Called "Sea-Changes"

Hon. Maren E. Nelson

"Full fathom five thy father lies,
Of his bones are coral made,
Those are pearls that were his eyes,
Nothing of him that doth fade,
But doth suffer a sea-change
Into something rich and strange."

Shakespeare, "The Tempest"

After a dozen years sitting in the Family Law Division and in the midst of making a change to a civil assignment, I was asked to comment on the changes I have seen. Has there been a "sea-change" in family law practice? Has Family Law turned into something "rich and strange?" I suggest the answer is: "no."

In "The Tempest' Ariel is singing about the alleged drowning of King Alonzo in a storm off the coast of Naples and the transformation of his body. The sea changes his body to something completely different, for reasons unexplained.

Many things have changed in the Division in the last decade. As a result of Marriage of Elkins (2007) 41 Cal. 4th 1337 and the 2010 report of the Elkins Taskforce to the Judicial Council there is a far greater recognition that for parties who elect to litigate their dissolution or parentage case, the rules that apply in civil cases generally also apply in family law cases, including the Codes of Civil Procedure and Evidence. The Judicial Council implemented time standards for case disposition, as well as procedural rules that standardized many practices (such as ex parte procedures), as well as substantive rules governing child testimony and the manner of preparing custody evaluations.

The relationship between bench and bar, while cordial , is a bit more formal. The practice of resolving cases with "chambers conferences" has been greatly curtailed, with an increasing recognition that their use often undermined confidence in the judicial system. They have, to a certain extent, been replaced with bar-assisted settlement conferences such as the Voluntary Attorney Settlement Teams and Daily Settlement Officer programs, as well as a system of court-assisted settlement conferences prior to trial.

While the Court's budget continues to be severely constrained, the Los Angeles Superior Court has recognized that the Division needs greater resources in terms of the number of bench officers as well as continuity in the bench. And, the Court has changed its trial procedures to recognize that parties who chose to litigate should be able to do so promptly and, as much as possible, in day-to-day proceedings.

For the Bar and the experts it employs, this has meant changes as well. If a client elects to litigate counsel and the experts must be prepared to do exactly that, just as civil practitioners arid their experts do and on a timetable that is far less leisurely than in years passed.

Increasingly, cases outside the family law realm impact it. In that regard, your attention is called to People v. Sanchez (2016) 63 Cal 4th 665, a criminal case in which the Supreme Court reversed one count in a conviction where the People's expert used hearsay to formulate his opinion as to the defendant's membership in a gang. Although the use of such hearsay was found improper in part because it violated the defendant's rights to confrontation under the Sixth Amendment, the case goes further and holds that under the Evidence Code, where an expert uses hearsay to formulate an opinion, there must be an applicable exception to the hearsay rule to admit that evidence or the predicate facts must be separately established. The case also contains a helpful description of the proper way to introduce expert testimony in any situation.

Although the case involved a jury trial, the significant portions of the holding relative to family law cases are these: "Any expert may ... rely on hearsay in forming an opinion, and may tell the ... [trier of fact] in general terms that he did so .... What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (/d. at 685-686). The Court reasoned that "when any expert relates ... case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth ." (Id. at p. 686). The rule derives not from the Confrontation Clause analysis but from analysis of the Evidence Code and thus is applicable to all experts.

But, is there a "sea-change?" Like King Alonzo, who had, in fact, not died, the changes we have seen and are likely to see in the future are not a "transformation" but merely a recognition that those who elect to litigate must follow otherwise well-established rules and procedures that assure substantive and procedural due process for both parties.

To the extent those procedures may make it more difficult for families to resolve their relationships, the real sea-change has yet to come. Stipulated dissolutions and paternity judgments by those who reach agreement on their own or through mediation or settlement conferences (with or without judicial involvement) are a regular occurrence. But, the system does not easily recognize those parties who wish to resolve their relationship in any manner other than in an initial adversarial pleading captioned "Petitioner v. Respondent." And , it has yet to come to a method for better serving high conflict families. Traditional litigation is the only answer we have now and often exacerbates an already fraught situation. I suggest that only when those changes occur will there be a real sea-change in family law practice.


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