By Malcolm Maclachlan (published Thursday, February 12, 2009)
Democratic lawmakers are crafting a package of bills to reform family courts in California. One Assembly member is seeking an audit of the family court system, while another has submitted a bill that would limit the types of testimony that can be used in custody proceedings.
Several other Democratic legislators are currently evaluating whether to introduce bills addressing other facets of the family courts. The legislation is being pushed by a variety of children and family groups, notably the Marin-based Center for Judicial Excellence (CJE), which has also submitted 20 unbacked bills to Judicial Counsel.
Assemblywoman Fiona Ma, D-San Francisco, said she’s asking the Joint Legislative Audit Committee (JLAC) to conduct an audit of family courts in Marin and Sacramento Counties. This follows a similar request submitted last June by now-termed out Assemblywoman Sally Lieber.
Lieber’s request sought audits of eight counties. It also sought answers to a wide variety of questions, from mediation procedures to appointment of counsel to minors and other issues. Ma said she trimmed back her request from that submitted by Lieber to focus on two counties that many family law advocates say have the most troubling track records on inconsistent behavior.
But after meeting with a dozen family court litigants recently, she said she felt it was important that she do something. Ma said she hopes the audit, and a hearing she plans to hold before the end of March as the chair of the Joint Committee on Domestic Violence, lead to ideas about how to improve the courts, especially for lower income parents.
“It’s very sad that some of these folks have been tied up in the courts for decades,” Ma said. She added, “It’s not set up for people who don’t have representation. There is no public defender in family courts.”
Ma also said she wrote her request to allow more flexibility to JLAC because of the complexity inherent in auditing a court system. Lieber’s request languished in JLAC, partially due to an extended health-related absence by former JLAC chair Nell Soto, also now termed out. But Ma said cost may also have been a factor. While she said she did not yet know how much the audit might cost, she said she wrote the request in order to limit the potential expense.
The request specifically directs JLAC to focus on custody disputes in which children were placed in the custody of caregivers who may have been sexual or physical abusers, or who have criminal records. It also asks for the Committee to look into how abuse claims are handled in different courts, and how custody evaluators are appointed.
Ma said she wants JLAC to look at inconsistencies between courts in different counties. For instance, there is a wide disparity in the cost of court appointed custody evaluators. The average is $15,000 in Sacramento County, according to figures from the CJE, while the average in well-heeled Marin County is $60,000.
Assemblyman Jim Beall, D-San Jose, has introduced a bill that would ban the use of “non-scientific theories” in court cases. This bill would prevent the use of a theory called “parental alienation syndrome,” or PAS. This is the idea that one parent seeks to alienate a child against the other parent, leading them to level untrue accusations of abuse or neglect.
“We want to change a harmful family court practice that apparently has gone unchecked for some time, resulting in innocent children being improperly placed,” Beall said. “This legislation requires family courts to follow the legal principals of accepted evidence. The bill ensures pseudo ‘syndromes’ are not used in custody determinations.”
While both mothers and fathers have leveled charges of PAS in custody cases, widespread anecdotal evidence suggests that it has more often been argued by fathers. Several fathers’ rights groups say PAS is real. However, it is not generally accepted by the psychiatric community.
Assembly majority leader Alberto Torrico, D-Fremont, said that he also may carry legislation. While he said budget negotiations have been taking up most of his time, he has submitted language to Legislative Counsel which would establish statewide standards for family court custody evaluations.
“That’s something we’re looking at to make sure we’re placing kids in the best, safest environment.”
Several other unbacked bills would seek to address other problems with family courts, said Kathleen Russell, staff consultant with the CJE. Among these ideas: allowing children to testify on their own behalf; removing the immunity of judges and court employees from being sued for misconduct; changing the law so court employees are subject to the California Whistleblowers Protection Act; charging courts, rather than parents, to pay for custody evaluators in order level the playing field between ex-spouses with disparate resources; and mandating that custody evaluators receive the standard 24 hour training curriculum on child sexual abuse put forth by the American Bar Association’s Center on Children and the Law.
“Children are being placed in dangerous homes without protection,” Russell said. “It’s reached epidemic proportions. We couldn’t be more pleased to have legislators step up to the plate.”
Russell just returned from a trip to Washington, D.C., where she and other advocates met with legislators, including members of the California delegation. She said she expects federal legislation to be coming soon. Because the federal government heavily underwrites family court costs in the states, it has a great deal of leverage to impose greater standards and consistency.
“We’re looking at the federal flow of funds to the state courts,” Russell said. “That is where the feds can intervene.”