Family law is the one area where the cases are abundant and the majority of the litigants are pro per (not represented by counsel). Due to the high-volume court dockets and limited resources, many courts have adopted local rules to facilitate order to show cause hearings (where you ask the court to make an order) by only permitting evidence through declarations or affidavits and limiting live testimonies at these hearings. In 2007, the California Supreme Court decided in Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 that the local rules prohibiting family law litigants from providing live testimony and cross examining witnesses deprive these litigants of due process. In particular, the Elkins court stated “In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice…. “
In response to the Elkins ruling, in 2008, the California Judicial Council created the Elkins Family Law Task Force http://www.courtinfo.ca.gov/reference/documents/factsheets/ElkinsTF.pdf to research, monitor and recommend ways in which the locals rules could be amended or overhauled to ensure due process and to provide family law litigants with better access to justice.
Based upon lengthy recommendations from the Task Force, the California legislature enacted Family Code Section 217 which became effective on January 1, 2011. Section 217 provides that the court must receive live and competent testimonies at a hearing on any order to show cause, unless there is “good cause.” In essence, Section 217 turns divorce, custody and support proceedings into a sort of “mini trial” in that it permits litigants to bring in witnesses for their testimonies, and in turn, these witnesses can be cross examined by the opposing side. Section 217 and its implications can and will make divorce proceedings more complicated, lengthy and expensive for both sides. On the other hand, because the application of Section 217 will significantly increase legal costs and attorney’s fees in family law proceedings, it will also facilitate settlements and pressure parties to use mediation instead of resorting to the courthouse. It is too early for us to see how the courts will interpret and apply Section 217 but it will be interesting to see how Section 217 will change the landscape of family law.
****The opinion above is not intended to be legal advice and absolutely does not create any attorney-client relationship between its author and the readers**
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