The Ghost of Elkins

In Elkins v. Superior Court (2007) 41 Cal.4th 1337, the California court recommended that the Judicial Council of California establish a task force to “study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self-represented.” In response to this recommendation, the Elkins Family Law Task Force was appointed in 2008.  The Elkins Family Law Task force reviews transcripts and other documents from family law proceedings on a regular basis and makes recommendations which are then ruled on by the California Judicial Council.  The overarching theme over the years of these recommendations have been:  (1) a requirement that live testimony be taken in all family law motion hearings (unless reason for denial of testimony stated on record); (2) modification of the role of minors’ counsel to more closely resemble that of a traditional adversary advocate (kind of); and (3) changes that will increase the frequency of children testifying in custody disputes.

The manner in which the judiciary has interpreted these changes over time has differed from county to county and judicial officer to judicial officer.  In large part, the interpretation has also differed between counties that have child-custody recommending counseling versus those that have confidential child custody mediation.  Without construing an opinion as to whether or not this proposition is right or wrong, many judicial officers in counties with child custody recommending counseling (including Ventura) have rebuffed or done very little with the Elkins‘ propositions–and in so doing have said something to the effect of, “I am already receiving the child’s input through the mediator.”  I will side-step the potential academic issues with such a statement including but not limited to those posed by People v. Sanchez (2016) 63 Cal.4th 665 (California Supreme Court limited what case-specific hearsay may be conveyed to the Court as a basis for the expert’s opinion).

The ghost of Elkins lives on, as from time-to-time, the Family Code and the Rules of Court are updated with further changes that fit the three original themes of the Elkins Taskforce.  Now, it is Rules 5.210 (child custody mediation); 5.220 (court-ordered child custody evaluations); 5.242 (counsel appointed to represent a child); 5.250 and (children’s participation in family court).

The language stricken is almost an interesting as the language added.  The language “Children’s participation in family law matters must be considered on a case by case basis,” was stricken from Rule 5.250(a).  Interesting.  The new language in 5.250(b) states in part, “When a child wishes to participate in a court proceeding involving child custody and visitation (parenting time): (1) The Court should find a balance between protecting the child…(2)(A) Consider a child’s participation in family law matters on a case-by-case basis…  So without going into the text in boring detail, the new Rule deleted, “case by case basis” and then went on to describe the factors the court should use when considering whether or not to receive testimony from the child on a “case-by-case basis”.

Rules 5.220(D)&(E) require the mediator to inform the parties and the court about the child’s desire to testify, whereas Rule 5.242 requires minor’s counsel to inform the parties and the court about the child’s desire to testify; and Rule 5.220 requires the court-ordered child custody evaluator to to inform the parties and the court about the child’s desire to testify.

So, this is all the ghost of Elkins.  Changes in the language to rules which seem to again promote the original three themes of the Taskforce, while most likely having very little practical change.  Or stated otherwise, this will most likely have a greater potential impact in non-recommending counties than recommending counties in which a Judge can say, “I am receiving the child’s input from the mediator,” effective or not.