[NOTE: This article is the first in a series of articles to be published in the newsletter between now and conference, focusing on proposed legislation and court rules that are in the implementation process as a result of the Elkins Task Force. These changes are guided in part by our Keynote Speaker, Judge Mark Juhas, with the rest of the Elkins Implementation Task Force (EITF).]
Dear CALDA Members,
In June I attended a "mini-seminar" hosted by our local court. Our former Commissioner (now judge) Hon. B. Scott Thomsen was on the Elkins Task Force and earlier this year he referred me to Judge Juhas for our keynote speaker. The implementation of the Elkins recommendations was a topic of discussion. It was interesting to hear how the attorneys felt about some of the new legislation.
I recently updated my set of family law California Practice Guides and saw that the 2011 Update Highlight began with, "Legislative action last year - notably the monumental "Elkins legislation" (Stats. 2010, Ch. 352) - brought about a virtual landslide in the way we must now practice 'Family Law'."
In October, 2010, when implementation efforts began, the California legislature developed AB 939 and AB 1050, containing a variety of Family Law reforms. Both bills received Judicial Council support and were signed by the Governor. Development of new Court Rules and new Judicial Council forms are in progress and will become effective January 1, 2012.
However, AB 939, effective January 1, 2011, includes a provision for live testimony in all family law matters, set forth in Family Code section 217 which is highlighted as follows:
"217 (a) At a hearing on any order to show cause or notice of motion, the court shall receive any live, competent [relative] testimony..."
(This allows for testimony without requiring the matter is set for a longer-cause hearing or evidentiary hearing at a later date.)
"(b) ...a court may make a finding of good cause to refuse to receive live testimony...The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause."
(This rule is proposed as Court Rule 5.119 - Live Testimony, and includes testimony of minor children.)
"(c)...A party...shall...file and serve a witness list with a brief description of the anticipated testimony."
(This witness list should be served at the same time the order to show cause or notice of motion is served. Again, this law is currently in effect.)
Another recommendation from Elkins Task Force was to do away with the Order to Show Cause and Notice of Motion forms and instead have one form used for both. Effective January 1, 2012, the Request for Order (FL-300) will replace these two other forms. No points and authorities need be filed with an application for a court order unless required by the court on a case-by-case basis.
There's more....stay tuned, and don't forget to register early for the conference and hear from Judge Juhas himself!