"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
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.