Family Department Organization and Operations

Department of the District Court

Virtually every Utah study that has resulted in a report with recommendations recommends that family law jurisdiction be assigned to a department of the district court rather than a separate court.⁽¹⁾ This task force also recommends that family law matters be litigated within a department of the district court.

A family department of the district court serves the different needs of urban and rural Utah better than a separate court. In Davis, Salt Lake, Utah, Weber, and other urban counties, the court will be able to develop greater specialization through the separation of workloads that the heavy volume of cases requires. In more rural counties with fewer judges, the court will be able to make more efficient use of judges of both departments without the restrictions created by arbitrary boundaries of subject matter jurisdiction. Small courts will assign family law cases to the judge or judges of the family department, but because judges of both departments are district court judges, there is no impediment to substituting for judges between departments as the need arises. Although cross assignments are not precluded in the urban districts, one should expect it to be used rarely because of the greater volume of cases and the greater availability of judges within the respective departments.

A family department of the district court is more accessible to the public and to lawyers than a separate, specialized court. Multiple court levels, particularly courts with concurrent jurisdiction, are subject to manipulation to the advantage of one party over another. Special jurisdiction courts make the timely processing of claims more difficult. A party may be precluded from obtaining timely relief, especially on an emergency order or writ, because the judge at the courthouse that day happens to be a judge of another level of court without the jurisdiction to grant the relief regardless of the merits. Specialization may be needed in some circumstances, but it is important to provide for specialized judges, not specialized courts. The former provide all of the benefits without any of the limitations of the latter.

A family department of the district court provides more flexibility than a separate court to meet the demands of growing and shifting workloads. Judicial positions must be established by statute and once established cannot be eliminated during the term of office of the incumbent. This presents a very restrictive environment in which to respond to periodic shifts in judicial workload. With separate courts, a judicial vacancy of one court may be required to be filled even in the face of a lack of need, while judges of another court are overworked due to growing caseloads. With all vacancies belonging to the district judges but assigned to one or the other of the departments, the court can better respond to changes in workload through reassignment of the vacancy from one department to the other. The Judicial Council should have the authority to reassign vacant judicial positions between departments within a judicial district based upon the growth and diminution of the caseloads of the respective departments.

A. Permanent Judge Assignment

Whether judges of the family department should be permanently assigned to the department or should periodically rotate to hear other civil and criminal cases is a recurring question. What method of rotation best serves the needs of the judges and of the court is also problematic. The American Bar Association recommends an optional rotation system with a minimum assignment of one year with renewal for up to two years.⁽²⁾

The National Family Court Symposium recommends that family court judges be appointed or elected specifically to the family court and that they serve in that capacity for a minimum of four years.⁽³⁾

The Commission on Justice in the Twenty-first Century recommends voluntary rotation among departments with a minimum term of three years.⁽⁴⁾ The principal reasons for rotating judges among departments of the court are:

• to prevent burn-out of the judge;
• to prevent the judge from developing a fiefdom;
• to ensure the perception that family law cases are the equivalent of other civil and criminal cases; and
• to develop the generalist nature of the judge.

The task force concludes that these factors are not sufficient to outweigh the advantages of a specialized judiciary within the family department and that there are other methods, better than rotation, for achieving the identified goals. The task force therefore recommends permanent assignment of the judge to the family department.

1. Burnout

Judicial burnout is feared because of the emotional intensity and lack of diversity of family law cases. The cases proposed by the task force for assignment to the family department are diverse in nature presenting many issues across a broad legal spectrum. The task force recommends that there be no specialized judicial divisions within the family department.⁽⁵⁾

The breadth of cases within the family department should minimize the risk of judicial burnout. Also, the family department should emphasize workshops and other forums for judicial education as a means of providing breadth of experience as well as information on current developments.

2. Fiefdoms

It is questionable whether rotation alone is sufficient to prevent judges from accumulating personal power within a department. It is without question that rotation of judges will delegate that concentration of power to other members of the department -- court commissioners, probation officers, and clerks -- who do not rotate. Judges of short tenure will rely more heavily upon their staff so that judicial rotation will increase the anonymity and reduce the accountability of the real decision makers within the department.⁽⁶⁾

The governor does not appoint and the public does not elect the many staff members necessary to assist the judge. Judges alone are accountable to the public and should be responsible for the actions taken on their behalf by staff.

A permanent assignment to the family court makes the judge responsible for the actions of the department, but it also means the development in the judge of the power that specialization brings. In order to further protect against the abuse of that power, the task force recommends that family law cases be made more open to the public with greater review by appellate courts.⁽⁷⁾

3. Equivalent Departments

The perception that the family department is of equal stature to the general department of the district court is an important objective. Blurring the lines between the departments by rotating judges is one method of accomplishing that objective. The inevitable result of rotation, however, is the assignment to the department of judges without substantial interest in the resolution of family law disputes. The knowledge attendant upon specialization does not come from merely doing the work. The benefits of specialization are best achieved by persons with not only experience, but also interest, in the subject. If the assignment of judges to the departments is permanent, applicants will be self selected based upon genuine interest in the work of the department.

Rotation alone will not ensure the equivalency of the departments. The method of rotation is critical. If rotation is periodic, and all judges serve for equal periods at equal intervals, rotation will assist in making the departments equal. However, if assignment to a department is based on seniority or is within the discretion of the presiding judge, rotation will work against making the departments equal.

The judges of the family department are district court judges, as are the judges of the general department. A single class of judges, self selected by their application to the respective departments, will do more than rotation to ensure the equivalency of departments. In the end, lawyer and public perception of the family department will be driven more by the quality of the court process and the quality of decisions than by the rotation of judges.

4. Generalist Judge

The district court is the trial court of general jurisdiction. In most of the state the preference of the judges of the district court is that of the generalist. In other words, the judges are assigned, as equally as circumstances permit, a cross section of all types of cases within the jurisdiction of the district court. The objective of this diverse assignment of cases is not to become expert in all areas of the law. The objective is two-fold: to equalize the workload of judges; and to avoid within the small divisions of larger courts the problems long associated with one and two judge districts.

A family department within the district court collects the many different types of cases affecting families and the many different types of cases needing a collaborative service effort. The specialization of judges is the reason most often cited for a unified family court providing a higher quality of justice than a system with multiple courts responsible for family law cases.⁽⁸⁾

However, to avoid over-specialization and to avoid burnout, the task force recommends that within the family department, and the general department for that matter, there should be no further specialization.

5. Disadvantages of Rotation

The task force has identified the following disadvantages to rotation.

1. Delegation of authority to anonymous decision makers.
2. Impediments to the development of specialization.
3. Inequitable application of rotation.
4. Impediments to individual calendaring and direct calendaring.
5. Diminution of advocacy and stewardship of community based service programs.

The first three issues have been discussed above; the final two points are perhaps the most important.

1. Impediments to Calendar and Case Management

If judges rotate between departments, it is significantly more difficult to maintain the individual calendaring⁽⁹⁾ of cases advocated by most judges, lawyers, and administrators in Utah. To maintain individual calendaring while rotating between departments, the judge must retain assigned cases when leaving the department and must schedule time for the retained cases among the cases from the new department. Scheduling and other case management requirements for different types of cases can differ significantly. Trying to integrate different types of cases into a single calendar does a disservice to all of the cases.

If a judge rotates between departments, direct calendaring⁽¹⁰⁾ or one family -- one judge, becomes impossible. Family law disputes are not timed to the convenience of a judge's schedule. Family law cases usually assigned to a particular judge necessarily cannot be assigned to that judge while in the general department.

2. Advocacy for Programs

In other sections of this report,⁽¹¹⁾ the task force recommends that the family department assume a leadership role in advocating collaborative, community based service programs. This role of the court is critical to the success of such programs and advocacy will fall to the judges as the visible leaders of the court. If judges rotate between the family department and the general department, they will have substantially less credibility in advocating for the programs that they, their court, and their community rely upon in bringing assistance to individuals and families in need.

3. Alternatives to Rotation and Permanent Assignment

The task force considered three alternatives to the rotation or permanent assignment of judges:

6. assignment by the presiding judge;
7. non-specific or generalist assignment; and
8. volunteer assignment upon the occurrence of a vacancy.

The task force recommends against the authority of the presiding judge of the district to assign judges to departments. Such assignments have not historically been within the authority of the presiding judge. With the power to make such assignments, the presiding judge could use it to the advantage of some judges and to the disadvantage of others.

The task force recommends against the non-specific assignment of judges for work in both departments simultaneously. This method of assignment was suggested during the course of the public comments to the preliminary recommendations. In essence, the family department would consist of an infrastructure of specialized clerks, probation officers, and other professionals, but the judges would be assigned cases of all types -- family law, criminal law, civil law, etc. The task force considered such a model early in this study and recommended against it because it does not emphasize the specialization of judges seen as beneficial to the determination of family law cases.⁽¹²⁾

The task force also recommends against the assignment of judges to departments by volunteering whenever there is a vacancy. This method of assignment is similar to the one recommended by the Commission on Justice in the Twenty-first Century, which provided for the opportunity to volunteer for reassignment every three years.

Volunteering has the same advantage of appointment by the governor in that the assignment to the department is made through a process of self selection. However, to the extent that a pattern of migration from one department to another develops, there is a concern that the migration will leave the family department with the least experienced judges, and will leave the governor with few opportunities to appoint judges to the general department.

1. Recommendation: Permanent Assignment

The task force recommends that judges be appointed by the governor to a specific department of the district court, whether it be the general department or the family department.⁽¹³⁾

The judge should serve within that department unless appointed upon nomination to another department. The Judicial Council should have the authority to reassign vacant judicial positions between departments within a judicial district based upon the growth and diminution of the caseloads of the respective departments.

Because of the equivalency of the judges in the two departments, that is, all judges are district court judges, appointment to one department will not preclude the assignment of cases from the other department to the judge. This assignment of cases among judges of different departments is especially important in rural courts where the smaller caseload and greater distances between courthouses mean that judges are less immediately available.

The commitment of one's judicial career to either the general department or the family department of the district court ensures that judges will be selected on the basis of their ability and interest in the areas of the law assigned to the department. The court will enjoy the advantages of judges performing the work they prefer. Judges of the family department will be in a position to assume a leadership role in the advocacy for service programs.

The principal disadvantage of permanent assignment to departments is the high degree of separation between the two departments. There is little opportunity on the part of judges of one department for familiarization with and responsibility for the issues facing the other department. This separation will tend to produce the same problems of competition and suspicion that can sometimes be found in the separate district, circuit, and juvenile courts.

A. Administration

The proper administration of the district court with two major departments is a delicate balance between recognizing the separateness of the two departments and integrating the common interests of the two departments. The judges of each department should be equal partners in the administration and operations of the district court. The judges of each department will share many common judicial interests and goals. Nevertheless there are many issues that will be unique to one department or the other.

Establishing specified seats on the Judicial Council, a separate Board of Judges, a separate presiding judge, or a separate state level administrator emphasizes the differences between the two departments, and may drive a wedge between them as they compete internally for resources. Establishing a common presiding judge and administrator and making no special designation of Judicial Council or Board positions emphasizes the commonality of the two departments. However, requiring judges in positions of leadership to consider and resolve issues of public policy and administration regarding a segment of the court's work with which they have no familiarity may not be the most efficient use of judge time nor result in the best decisions.

The task force recommends that in balancing the competing interests, the administrative structure of the courts generally favor the integration of the general department and the family department rather than their separation.

1. Judicial Council

The task force recommends that district court seats on the Judicial Council be designated as either general department seats or family department seats.

As recommended in this report, judges of the district court will be specializing for their entire judicial career in either the general department or the family department of the court. Although judges of both departments are full judges of the district court, there is still considerable separation between them that should be recognized.

The separation of district court seats on the Judicial Council is an important symbolic distinction that should not cause any real separation between the departments. The Judicial Council is charged by constitution and statute to establish policies for the administration of the courts. In the exercise of this considerable authority, judges elected to their positions on the Judicial Council represent not just their constituent court, but the best interests of the entire court system.

2. Board of Judges

The District Court Board of Judges should be integrated to include designated seats from both departments.

This structure finds a middle ground between integration and separation in that there should be only one Board, but seats on the Board should be designated as either general department or family department seats. The board may work in specialized subcommittees on issues of interest only to one department.

3. Presiding Judge

The judges of each judicial district should elect one presiding judge. The judges may elect additional leadership positions as needed.

4. Statewide Administrator

In evaluating different models of administration the task force identified the following objectives:

9. Judicial access to administrators.
10. Linkage between court operations and the administration of programs.
11. Local responsibility for operations.
12. Simplicity.
13. Uniform basic structure that permits local variations.
14. Single line of supervision of court executives and court clerks.

The state court administrator should appoint, with the concurrence of the Judicial Council or the Board, a statewide trial court administrator responsible for the management and administration of all state trial courts. The statewide trial court administrator may appoint assistants as needs require and the budget permits.

1. District Executive

The statewide trial court administrator should appoint one court executive per judicial district, who is responsible for the management and administration of the state trial courts in the district. The trial court executive may appoint assistants as needs require and the budget permits.

2. Clerk of the Court

The trial court executive should appoint one clerk of court per judicial district, who is responsible for all clerical operations of the state trial courts in the district. The clerk of court may appoint assistants as needs require and the budget permits.

A. Operations

1. Case Management

The task force recommends the development of a system of case management within the family department. There appears to be little activity among state family courts to develop this feature,⁽¹⁴⁾ although it is recommended by American Bar Association.⁽¹⁵⁾

Although the literature refers to a case management unit, this report does not discuss the organizational structure, which may vary from court to court. The focus is on the identification of case management objectives and functions. If the case management functions are developed as a unit, the unit becomes a convenient forum for advocacy for resources for community based services and for liaison with executive branch agencies⁽¹⁶⁾ both for general relations and for case work.

a) Case Management Objectives

The objectives of case management in the family department are to:

15. Make better use of judicial time and expertise by:
16. providing more and better information to judges; and
17. assuming the administrative burdens that now fall on judges.
18. Improve the ability of families in court to negotiate the legal system by assisting those cases that need assistance.
19. Ensure that families get the services they need and that none fall through the cracks by managing all of the functions of the court related to programs and services available to families before the court.

a) Case Management Functions

Case management functions fall into several broad categories, some of which overlap.

(1) Clerical

Case managers should review pleadings and other papers for completeness when filed or when a case is scheduled for a hearing.

This review should identify any omissions in the pleadings and thus reduce the amount of time wasted by the court, attorneys, and parties when a hearing must be rescheduled due to missing or incomplete documents. The review will vary by the type of the case and the purpose of the hearing. Items for review may include child support work sheets, affidavits, motions and memoranda, notice of the hearing, subpoenas, discovery completed, and the like. Case managers should work with judges and lawyers to develop a checklist for the different types of hearings.

Case managers should develop a cover sheet for domestic cases that provides the data required to be entered in court records and that permits a party to identify a case as probable for entry of a default or stipulated judgment. In the management of scarce judicial, clerical, and program resources, it is important that the more involved procedures, such as mediation, scheduling conferences, settlement conferences, and trial be reserved for cases that warrant them.

Inevitably, some cases will endure special procedures that will not benefit the case, but the court should work to minimize this inconvenience.

Case managers should work with judges, commissioners, and lawyers to more realistically evaluate the amount of time needed to conduct hearings on the law and motion calendar.

Block scheduling, rather than scheduling for a time certain, results in lawyers spending time waiting for a case to be called, with resulting costs to the client. Unanticipated complexities in a case may require a hearing to be rescheduled due to lack of time on the court calendar to the inconvenience and cost of all. Scheduling routine cases for a time certain or at least in shorter blocks reduces time wasted by lawyers. Anticipating complex cases and scheduling them separately for an appropriate amount of time protects the time of the court and the lawyers.

Case managers should monitor the development of cases against any time standards that may exist and report problem cases to the assigned judge. Case managers should monitor motions and other matters submitted for the decision of the judge and report them to the judge when they are at issue.

(2) Screening

All of the current programs under juvenile court intake should be included in the family department screening functions.

In juvenile delinquency cases an intake officer reviews referrals for jurisdictional sufficiency: the juvenile is sufficiently identified and is under 18, and the elements of a violation of law are alleged. The intake officer schedules a preliminary inquiry meeting with the juvenile and the juvenile's parents. In felony offenses, the purpose of the meeting is limited to advising the juvenile and parents of their rights and the procedures involved. In misdemeanor offenses, the preliminary inquiry is the first step in the process of non-judicial adjustment of the case. Non-judicial adjustment is a statutorily established diversion process that is permitted only with the voluntary agreement of the juvenile and the parents. Denial of the offense precludes non-judicial adjustment. The intake officer, on behalf of the court, the juvenile, and the parents enter into a written agreement that may include as sanctions a fine of up to $100, restitution, community service in lieu of or in addition to a fine or restitution, and referral to counseling. Upon completion of the terms of the agreement, the referral is closed without a petition. If the terms are not completed, if the juvenile denies the charge, or if the juvenile does not volunteer to participate in the non-judicial adjustment program, the intake officer forwards the referral to the county attorney for prosecution. After adjudication, the intake officer conducts a presentence investigation with report and recommendations, also known as a social study.

Currently, there is no intake or screening mechanism in domestic cases comparable to those in juvenile cases. The family department should develop domestic intake and screening functions.

Some possible intake and screening functions include:

20. Determine whether mediation is appropriate in a case and whether mediation has occurred prior to filing. Advise the parties and counsel of required mediation.
21. Determine whether divorce education classes are required and whether they have been completed prior to filing. Has the certificate of completion been filed? Notify the parties and counsel of the education class requirement.
22. Determine whether the divorce decree will be entered by stipulation or default. Circumvent mediation and discretionary programs and schedule accordingly.⁽¹⁷⁾
23. Conduct a scheduling conference with parties and counsel. Establish discovery deadlines. Schedule for temporary orders.
24. Determine whether the action should circumvent temporary orders by the court commissioner and be scheduled before a judge for temporary orders.
25. Assist petitioners as requested in filing a petition for a domestic violence protective order. Provide information regarding local shelter options, the local Children's Justice Center⁽¹⁸⁾ and child protection agencies. Provide petitioner with the name of the deputy county attorney responsible for the prosecution of criminal charges of domestic violence. Provide information regarding local counseling for the control of domestic violence.
26. Determine what, if any, services may be needed for emergency crisis intervention.

(1) Case Coordination

A dominant feature of a family department should be the active coordination by the court of related cases. The objectives of case coordination are two-fold: to ensure the consistency of multiple orders in different cases affecting the same family; and making the process of family law litigation less burdensome to the parties.

Case coordination may mean, but does not necessarily mean, the assignment of several cases related to members of the same family to one judge. In some situations, an earlier determination by a judge may create such a bias or perception of bias as to preclude the conduct of later proceedings by that judge. Whether related cases are assigned to one judge or several, to achieve the objectives of case coordination the court must improve the quality of and access to information contained in court records.

An integrated computer system, built to manage both the domestic cases currently in the district court and the juvenile cases currently in the juvenile court, is a necessity. Computer generated indexes should cross reference other members of the family of parties to a case and the cases to which those family members are parties. This will require data entry of information that is not now consistently gathered. It will, in turn, require obtaining much of the data from the parties. The required use of a uniform cover sheet is well suited for collecting such information. The extent to which the search for related cases extends beyond the courthouse depends upon the capability of the computer to communicate with its counterparts in other courthouses across the state.

Upon identification of related cases, the computer should provide quick access to:

27. the orders that remain in effect in the related case;
28. the stage of proceedings in the related case;
29. the schedule of any future hearings or other due dates; and
30. studies and reports filed, such as custody evaluations, presentence investigations, and the like.

With the information available, the court should try to ensure the consistency of concurrent and consecutive orders in different cases affecting the same family. Studies, reports, and other information from other cases that may affect the disposition order of the instant case should be subject to challenge by the parties. The parties should have advance notice of the content, availability, and proposed use of the information.

With the information available, the court should try to schedule hearings in concurrent cases in a manner that will maximize the convenience to the parties, the lawyers, and the court. The use of scheduling conferences may assist in this objective.⁽¹⁹⁾

Within appropriate limits, convenient scheduling of concurrent cases may mean speeding one case up or slowing another case down. It is the nature of some cases that they should not be delayed. Delinquency prosecutions, for example, should proceed without significant delay so that the adjudication of the case is close enough to the commission of the crime to impress the causal relationship upon the offender. A case may be so near completion at the time of filing a related case that delay of the final judgment in the first case works an injustice.

As is currently required in juvenile court, counsel should share the responsibility for coordinating related cases.⁽²⁰⁾ If counsel is aware of cases related to the instant case, counsel should bring that to the attention of the judge.

(1) Service Coordination

Another important tool within the family court is a case management unit that is familiar with the resources of the community, executive agencies, and the court. The responsibility of the case management unit will be to identify the multiple needs of the family as soon as the family enters the court system and to link the family with the services best designed to meet those needs. The unit should consist of attorneys, social workers, probation officers, court clerks and other professionals to coordinate and help procure services for families before the court."⁽²¹⁾

These are high ideals that not only are costly but also difficult to implement. At the time of filing a petition or complaint, there is very little information available to the court staff upon which to "identify the multiple needs of the family." To accomplish the goals set forth by the cited ABA report, the court will have to develop the process by which case managers can obtain the information necessary in making the evaluation. Court staff should then work with the parties and the providers to coordinate the scheduling and delivery of services. Coordination is particularly important for the protection and interviewing of children. To this end, court staff should make use of the Children's Justice Centers.

Perhaps the most important case assessment that can be made is that the case is routine. Although the court should have available the tools it needs to manage difficult cases involving families with multiple needs for programs offered by different providers under different jurisdictions, most of the domestic litigation filed with the court will be routine litigation that does not require substantial intervention or specialized procedures. It is critical to the success of the family court, as it is critical to the success of any organization, to allocate its scarce resources according to the needs of the case. In a court, this means to identify routine cases as early as possible and to treat them routinely. The court should reserve its more intensive intervention for the cases that need it.

At the early stages of litigation, staff involvement should be limited to making information available to the parties and in assisting in obtaining desired services. The staff has no authority to compel participation in programs absent a statute or rule, such as the mandatory divorce education statute. Participation in programs under order of the court must await the judgment of the court after notice and the opportunity to be heard. To assist the judge in making a more informed decision regarding compatibility of programs for the parties, case managers may make recommendations to the judge. To ensure that some providers are not over worked while others are idle, staff may advise the judge regarding the distribution of referrals.

Whether as part of a voluntary effort by the parties before adjudication or by order of the court after adjudication, case managers should work with service providers to eliminate duplication and to develop a consistent approach to the delivery of services. If multiple agencies are involved and the court is without the resources to coordinate the delivery of services, the court should consider appointing an inter-agency team and assign an agency case worker to assume that responsibility. The court may require periodic reports by the case worker to the court.

Case managers should work with the Division of Family Services to develop a program for a quick custody assessment for children at risk of victimization. The assessment could be ordered by the court in select cases where custody of the child is in dispute and the child may be at risk. The assessment would be far less detailed than a full custody evaluation and returned to the court within 72 hours. Although the information contained in the report may not be fully developed, the court currently has almost no information on which to base a temporary order of custody and visitation.

To provide better and faster information to service providers, the court's computerized data base should be available to executive branch agencies and service providers on a need to know basis. Care must be taken to protect the privacy interests of the parties, but case histories should be available to case workers and service providers to enable better decision making.

(2) Information to Parties

Generally, for moving a case through the system quickly and in a straightforward manner, the is no substitute for a qualified attorney. Nevertheless, some parties will always represent themselves, usually due to lack of funds to retain counsel. The objective of the court is to make the court as accessible as possible, especially to those representing themselves. At the same time, it is important that the court, including case managers and others, avoid even the appearance of favoring or advising a party. This limitation, however, should not preclude case managers from providing procedural information. Court staff should have ready access to detailed information of what services are available in the community through the executive and judicial branches and through private providers. This information should be made available to the parties.

In providing information, case managers should be able to rely heavily on preprinted pamphlets, approved forms, "quick court," and other media available for quick and broad distribution. Case managers should be knowledgeable about routine procedures and instructed in how to assist parties and lawyers.⁽²²⁾

For information regarding more complex matters, the court might refer parties to local low cost or no cost attorney services. For the victims of domestic violence, the court should refer parties to the local Children's Justice Center, the YWCA, or other community organizations that provide shelter. Case managers are required by statute to provide assistance to victims of domestic violence in filing a petition for a domestic violence protective order.⁽²³⁾

(3) Training for Case Managers

Training for court personnel should be mandatory, extensive, and continuing. Possible subject areas include, among others:

31. child development
32. cultural, linguistic and racial diversity
33. substance abuse
34. domestic violence and its control
35. interview techniques
36. mental health
37. symptoms of abuse and neglect
38. control of delinquent behavior
39. learning disabilities
40. availability of programs in the community and region
41. executive branch social service structure
42. family law procedures
43. non-adversarial dispute resolution

The Administrative Office of the Courts has a strong judicial education branch that includes both judicial and staff education programs. These programs should be continued and, if possible, enhanced in the areas outlined. The court and its staff should develop a mandatory core curriculum from among these and other subject areas. Training sessions might be coordinated with similar efforts of the Division of Family Services and the Division of Youth Corrections.

(1) Periodic System Evaluations

Case managers, in cooperation with the judges, should periodically assess the effectiveness of the case management system.

Beyond providing a forum for evaluating the delivery of services, the evaluation should assess the effectiveness of the system itself as measured against the case management objectives stated on page 56 by polling the system users: lawyers; parties; judges; and court commissioners. The results of the studies should be made as reports to the local court.

1. Enforcement of Court Orders

The objective of any court, after the entry of the final judgment, is to empower the parties to enforce their respective rights without extensive recourse to the court. In civil litigation, the relationship between the parties is usually one of judgment creditor and judgment debtor. The empowerment comes in the form of devices for the collection of the debt: writs of attachment or garnishment; orders supplemental to the judgment, liens upon property; and the like. The programs associated with the collection of the debt are minimal because the parties in civil cases of any significant amount generally are assisted by counsel. The creditor's attorney, who will usually be paid from the amount collected, has a clear self interest in the collection of the debt. The parties are often of equivalent bargaining power and may negotiate an arms length settlement of the debt different from the judgment of the court.

The objective of the family department is to empower the parties to enforce their respective rights and to avoid future litigation, be that rehabilitation of a youth offender or prompt payment of child support. Empowerment in the family law comes at greater cost than in traditional civil litigation because the relationship of the parties is much more complex than that of creditor and debtor.

Empowerment in family law cases encompasses threshold programs designed to establish more equivalent power between the parties. These programs include appointed counsel for indigent juveniles or defendants whose parental rights are subject to termination, an appointed guardian ad litem for a child affected by but not a party to a case, mandatory contempt sanctions for failure to permit visitation or pay child support, and agencies charged with the responsibility to collect child support on behalf of the custodial parent. The relatively simple prospect of representation by counsel is complicated by the often unequal earning power of the parties and the prohibition against contingency fees in most family law cases.

Avoiding future litigation in family law cases, unlike general civil cases but similar to criminal prosecutions, requires attempts to alter behavioral patterns such as: reducing recidivism of juvenile delinquents; deterring domestic violence; and compelling compliance with support and visitation orders.

The degree of activism of a judge and of the judge's staff in the enforcement of a court order must necessarily be left to the philosophy and discretion of each judge. As a general rule, judges of the family department will take a more activist role than other types of courts in the review and enforcement of its orders. Within the limits of due process and the assurance of a fair and impartial hearing concerning an alleged violation of a court order, this activist role of the court is proper.⁽²⁴⁾

The traditional activist role of the juvenile court in the enforcement of child protection orders and juvenile delinquency orders needs to be tempered in the domestic setting because of the sheer volume and the different nature of domestic cases.

In child protection cases and in delinquency cases, the juvenile court intervenes quickly to protect the child, either from harm caused by others or by the child's own actions. After the situation is stable and the child safe, the court determines the merits of the case. A critical purpose of the family department is to assume the guardianship responsibility of parens patriae over minors. More than just determining the best interests of the child, the role of the court is to provide, directly or through others, protection and care for children. To effectively achieve this goal, the judge of the family department must have the authority and the resources to monitor and to review cases, to amend ineffective orders, and to enforce workable orders. To enforce orders, judges may have to sometimes test the limits of their authority "to hold all participants accountable for fulfilling their roles in the court process and the delivery of services."⁽²⁵⁾

In divorce cases, many of the issues are questions of finance and property distribution between two adults. Such issues do not require substantial judicial intervention beyond determining and applying the facts and the law. In questions of child custody, visitation, and support, unless there are allegations of abuse, the interest of the court is not in protecting the physical safety or the moral responsibility of the child but rather in determining the legal rights of the child and the rights and responsibilities of the parents. Judicial intervention in custody cases may be expected, but to a lesser extent than in child protection cases or delinquency cases.

The family department should be aggressive in formulating a disposition order. The family department should expect and demand of its own staff and from public officials and private providers sound advice regarding treatment programs designed for the particular case. Once entered, the final judgment of the court changes the posture of the court with regard to the case. An old adage describes the judiciary as the passive branch of government. This principle is sound to the extent that it precludes the courts from seeking out controversies for adjudication. But upon entry of an order or judgment, the court owns a portion of the case and should no longer remain entirely passive.

To assist the courts as well as the parties, the family department should develop innovative, nonadversarial procedures not only for the adjudication of cases and the entry of judgment, but also for the enforcement of those judgments.

Case managers should provide information to the parties regarding the process for enforcing court orders. Where fines, restitution, or other payments are made through the court, the court should establish the appropriate accounts and procedures to monitor payments and deliver the funds quickly to the proper payee.

Currently, juveniles placed on probation are supervised by juvenile court probation officers. In this circumstance it is unavoidable that court employees will make decisions regarding the filing of a motion for an order to show cause why a probationer should not be held in contempt of court for violation of a condition of probation. To ensure the position of the court as the unbiased arbiter of contested disputes, court personnel should not go beyond this limited area in making discretionary determinations regarding the initiation of formal enforcement proceedings.

The court should receive regular reports regarding the delivery of services by service providers. Case managers should develop a process by which the users of services may lodge complaints regarding the delivery of services. Case managers should conduct polls of recipients of services regarding the effectiveness of a program, the responsiveness of the providers, and the method of delivery. These evaluations should encompass programs delivered by executive branch agencies, private providers, and court employees. The objective of the evaluation is to ensure that families receive the services as directed by the court, that the services remain applicable to the situation of the family, and that the quality of the programs remains high.⁽²⁶⁾

2. One Family -- One Judge: Direct Calendaring⁽²⁷⁾

Docket or calendar management, the process of assigning cases to judges, has historically been left to the discretion of each local court. Although there are some general principles applicable in designing a docket management system, the local court knows better than any central authority the local legal culture and its needs.

The task force makes no recommendations regarding specific docket management methods, but rather recommends that the local court develop for its family department a system that ensures:

44. judicial accountability;
45. just and timely decisions;
46. full judicial workloads;
47. exposure of the judge to the broadest possible spectrum of legal issues;
48. distribution of legal issues to the greatest number of judges; and
49. protection from manipulation.⁽²⁸⁾

The three major categories of docket management are master calendaring, individual calendaring, and direct calendaring.

a) Master Calendar

Although this method of docket management is not favored by most judges or lawyers, there are vestiges remaining in most courts. Under this option, functions rather than cases are assigned to judges. When a case reaches a stage where it requires a particular hearing or procedure, the judge responsible for that function performs it. One judge may conduct the law and motion calendar, another the pretrial, a third the trial of the case. No one judge is responsible for the case. Judges may rotate through the different functions, or they may be assigned on the basis of seniority or by the presiding judge. To the extent that master calendaring is used, it should be limited to simple cases that can be resolved in just one or two appearances and in which judicial continuity is not necessary. Most of the current use of master calendaring in Utah is limited to the early development of a case or to cases that are disposed of by default or stipulation.

b) Individual Calendar

This method of docket management is the most widely used in Utah. It is in effect to a great extent in virtually every courthouse in the state, although as noted, some portions of the docket may be managed by master calendaring. Under this option, cases are assigned to a judge who is responsible for all procedures and hearings during the course of the litigation. Variations on this method of assignment might use a judge or a court commissioner other than the assigned judge to conduct:

50. high volume, fast turnover, low discretion hearings;
51. settlement conferences; and
52. post judgment proceedings (e.g., enforcement of support payments).

a) Direct Calendar

This is the nomenclature given by the National Council of Juvenile and Family Court Judges to the concept of one family - one judge - one staff. In a limited sense, the concept is not new. Civil and criminal courts of this and other states have been consolidating cases affecting the same parties for many years. In rural districts with only one judge, direct calendaring has necessarily always been in effect. The full application of this concept is largely untried in urban courts. Direct calendaring is one means of accomplishing the close coordination of related cases, but there are other methods of coordinating cases that do not rely upon direct calendaring.⁽²⁹⁾

Several issues need to be resolved prior to the extensive use of direct calendaring.

53. How extensive should the definition of "one family" be?

    The objective of direct calendaring is the coordinated disposition of all cases involving parties with a significant domestic relationship. For this purpose, the historic definition of "family" may no longer be sufficient. The definition of family may necessarily be dynamic. Included are the nuclear family, unmarried cohabitants, step children and parents, foster children and parents, guardians and custodians, and parties with a continuing sexual relationship that are not cohabiting and their children. Because the need for the definition is to assist in the management of cases, there is less need for a precise, stable definition. The court may legitimately develop the definition to suit the objective of the docket management system.

54. Are there limits to the types of cases involving one family that should be assigned to the same judge?

    Direct calendaring should not include cases in the general department of the court. The judge of the family department should be aware of criminal and civil cases affecting the parties in a family law case, but the judge need not be assigned to them.

    Even within the family department there may be some cases that are so remotely connected to the other litigation of a family that assignment to the same judge is not needed. This fact does not preclude assignment to the same judge, but the rule of reason should prevail. If the judge historically assigned to cases involving a family is holding court in another county, is conducting an extensive trial, or is otherwise unavailable, the parties should not be made to wait unless the coordination of the different cases is important.⁽³⁰⁾

    The remote connection of the cases may be due to unrelated subject matter, the distant relationship of the parties, or the simple passage of time.

    Direct calendaring necessarily means the familiarity of a judge with different pieces of litigation affecting the same family. Rural courts, be they civil, criminal, or family law cases, have always faced the issue of familiarity breeding prejudice. Urban courts have the luxury of random case assignments to reduce if not eliminate this problem, but by its very nature, direct calendaring permits the random assignment of only the first case affecting a family. Theoretically, prejudice can be avoided by recusal of a judge upon the filing of an affidavit of bias. However, attorneys may hesitate to file affidavits for fear of cultivating even greater prejudice. There is no way to control the personal memory of a judge, but, as discussed below, the official information available to the judge can be regulated to help control bias.

    Given the mobile society in which we live, the need to coordinate cases across county lines and across judicial districts will not be uncommon. The juvenile court currently has the statutory authority to transfer cases to other counties to accommodate movement of the parties. The district court also may change venue of a case. This ability should continue with the family department.

    However, the inter-county or inter-district assignment of cases to a judge - staff team may be difficult. Venue in the case might be moved from one county to another, but this will almost always inconvenience one party or the other. Absent a change in venue, the judge could travel from one county to the other to adjudicate the case. This is a convenience to the parties, but it represents a cost borne by the state, and it produces significant pressure upon judicial time, one of the court's most scarce resources. Coordination of cases between counties is possible through extensive communication, but there should not be an effort to assign cases to a single judge - staff team if the cases originate and remain in different counties. If communication technology advances to the point where a court might conduct hearings by video conference, the concept might be reexamined.

55. How is information from one case provided to the judge in another case?

    Studies, reports, and other information from other cases that may affect the disposition order of the instant case should be subject to challenge by the parties. The parties should have advance notice of the content, availability, and proposed use of the information. Information regarding other cases that may be relevant during a disposition hearing should not be available to the judge during the adjudication phase, unless introduced as evidence.

56. How are staff positions to be assigned?

    Fully implemented, direct calendaring encompasses not only the assignment of cases, but the assignment of staff and other resources as well. The basic principle of this method of docket management is that all cases involving one family are assigned to the same judge and staff team. This principle requires judge - staff teams to be built. Depending upon the volume of cases and the nature of the staff work, staff members might be assigned to only one judge, to several judges, or some members of the team may be assigned to one judge, while other members of the team are assigned to several judges.

    Judges should be removed from the supervision of professional advisors. Judges should have convenient access to administrative supervisors for lodging complaints about performance and productivity but should not supervise. Judges should have input into hiring and discipline, but should not have ultimate responsibility for personnel decisions.

    This principle might be limited to professional advisors who have the responsibility to provide judges with disposition recommendations. It is important to ensure the independence of the judge in the decision making process and to avoid the appearance of impropriety in making improper communication to the judge about a case. This principle might be extended to clerks and law clerks although the need for the separation is less keen.

a) Guidelines for Direct Calendar Case Assignment

If the court develops a program for the direct calendaring of cases, the court should develop guidelines for case assignment similar to the following to make the practice smooth and uniform.

57. The factual and legal issues of the cases are similar.
58. The cases are at similar stages of development or can be conveniently scheduled.
59. The parties of the cases are closely related or are substantially the same parties.
60. The familiarity of the cases by one judge will assist in the adjudication of the cases, yet will not bias the judge.
61. The potential for divergent orders in the cases is great unless the cases are assigned to one judge.

1. Mediation of Domestic Disputes

a) Promise of Mediation

Mediated settlement holds significant promise for the just, equitable, and speedy resolution of contested domestic cases. There are concerns about mediation that must be guarded against, but with these identified, mediation should be a preferred alternative to costly court trials.⁽³¹⁾

A divorce is not merely the severance of an existing relationship. The divorce decree defines the nature and parameters of the future relationship between the parties. There are advantages to mediation over contested litigation as the preferred procedure for developing that relationship. Mediation offers the parties the opportunity to develop a relationship of their own making rather than to rely upon a judge or other arbiter to impose that relationship. Having made their own agreement, the parties are more likely to abide by its terms.⁽³²⁾

Mediation offers the parties an environment in which to resolve the emotional component of a divorce. Current domestic procedures have no equivalent. Current domestic procedures take the parties from an intimate relationship to an adversarial relationship. The goal of mediation is to take the parties from an intimate relationship to a relationship of mutual respect and civility. Mediation offers the opportunity to discuss the terms of the divorce in a controlled environment. The testimony of mediators reveals that most divorcing spouses want to settle their differences and part amicably. Mediation provides that opportunity. The mediator is present neither to vindicate the position of one party over the other, nor to assess fault or blame. The role of the mediator is to provide a forum in which to explore areas of agreement.

Mediation is not well suited to all cases. The parties should have already severed or at least limited their psychological attachment to each other. Mediation of disputes should not be an attempt to reconcile the parties. The parties should have individually defined their respective best case and worst case outcomes and be willing to discuss the middle ground. The parties should share interests sufficiently common to establish a desire to settle rather than to litigate their differences. Some parties will never agree to any point; at best they will agree to abide by a judge's order. The parties must be of relatively equivalent bargaining power. Parties should be represented by counsel. Cases where only one party is represented by counsel should be submitted for mediation only on a volunteer basis. Cases with allegations of violence, directed against either the spouse or the children, should not be mediated. Cases where an adult and a child are opposite parties should not be mediated.

If the respondent defaults to the petition for divorce, or if there is no contested litigation, mediation is superfluous. Default divorces and stipulated divorces should not require mediation.

Within these broad parameters, the court should develop screening criteria to identify domestic cases with a high probability of successful mediation. The objective of screening is not to match a case type with an ADR procedure. Rather the objective of screening is to determine whether the case should be submitted to mediation. Submitting a case to mediation should be presumed unless it meets the exclusionary criteria discussed above.⁽³³⁾

The court should require of cases that qualify a minimum of two hours of good faith mediation. It is inevitable that some cases will not settle through mediation. This means an increase in the time and cost to litigate those cases. The court should give scheduling priority to cases in which mediation has failed. Although officials responsible for screening should conscientiously avoid requiring mediation of cases not likely to settle, the additional time and cost to some individual cases is offset by the significant savings in total time and cost of successful mediation of a majority of the contested cases.⁽³⁴⁾

b) Process of Mediation

Striking a balance in when to initiate mediation may be difficult to achieve, but it is important to achieve that balance. Mediation should occur late enough in the process to enable the parties to come to the negotiation table fully informed. Yet mediation should occur early enough that the parties have not become entrenched in their adversarial roles.

To improve the chance of successful negotiations, mediation should occur as early in the process as is practicable, even before a petition is filed. At a minimum, mediation should occur prior to the initial court hearing, at which time a judge or court commissioner will determine questions of temporary child custody, visitation and support, temporary maintenance, and temporary possession of property. Rendering these decisions may present an obstacle to mediation. If a case is one in which mandatory mediation is likely, the lawyers should advise their clients to attempt mediation prior to a petition being filed.

Mediation is not a substitute for legal representation. Indeed, representation of each party by independent counsel is preferred. If the mediator represents the interests of either party or offers legal advice to either party, the mediator abandons neutrality. Mediation has the best chance of success when each party is fully informed regarding his or her own legal rights and responsibilities and those of the other party. Mediation has the best chance of success when each party is fully informed regarding real and personal property. Such information is just as important in mediation as in litigation. Representation by counsel can help to provide this information.

A lawyer should not mediate on behalf of a client, but the availability of by counsel in the mediation process is preferred. The parties themselves need to develop solutions to complex problems, but the parties need to consult with counsel to review any interim agreements made during the course of negotiations. Review by counsel of the progress of negotiations is important to avoid extensive revisions to an agreement at or near the conclusion of negotiations. Lawyers may or may not attend mediation sessions. The presence of a lawyer at a mediation session is time charged to the client, yet having counsel present for immediate consultation may expedite agreement. A lawyer should not advocate for a client at the mediation sessions. The lawyer should advise the client of rights and obligations that exist under the law and advise the client in developing a settlement that protects the client's rights, honors the client's obligations, and is mutually acceptable to the other party.

The ultimate goal of mediation is the settlement of the entire case. If this goal is not possible, then mediation should be used to limit the issues for trial.

To enhance the willingness of the parties to openly mediate domestic disputes, statements made during mediation sessions should not be admissible in evidence if the case proceeds to trial. The current law in Utah on this point is subject to interpretation and should be clarified.⁽³⁵⁾

c) Concerns about Mediation

Mandatory mediation of domestic disputes may disadvantage the legal rights of the poor or of a party with significantly less earning power than a spouse. It may be possible to develop mediation programs available at no cost to an indigent party, but a party may not qualify as indigent and still not be able to afford the cost of mediation and legal representation. Representation by counsel being discretionary with the party, a party may abandon legal representation in order to pay for mandatory mediation. If mediation is all that it promises, the time required of lawyers and therefore the cost of lawyers should be reduced. That reduction may or may not be sufficient to off set the new cost of mediation.

The development of legal rights in domestic law has largely been through case law. The continued involvement of lawyers in representing their clients through the mediation process should be sufficient to ensure that existing rights are recognized. However, since the goal of mediation is to avoid litigation in the courts, the future case law development of domestic law may be at risk. Advocates for the development of domestic law may have to look more frequently to the state Legislature. Mediation does not preclude the full trial of cases so that lawyers may still present test cases if that course is pursued by a client.

It is argued that mediation works to the disadvantage of women by privatizing family law problems.⁽³⁶⁾

It is true that mediation is a private forum without the trappings and procedures of a court of law. However, mediation, even if a mandatory procedure, is not at the expense of a person's right to access to the court. Nor does mediation restrict access to the Legislature for the development of new legal rights. As proposed here, mediation would not be used in cases of domestic violence. Although mediation does not have as its principal goal the protection of any party's legal rights, the participation in mediation by counsel, as recommended by the task force, should protect those rights while offering the advantage of settlement over litigation. It is argued that mediation is not enforceable.⁽³⁷⁾

Although the mediated agreement itself may not be enforceable, once included in the divorce decree or other order of the court, the court decision is enforceable.

d) Qualification of Mediators

The qualification and regulation of ADR providers, including mediators, is the responsibility of the Division of Occupational and Professional Licensing and the Alternative Dispute Resolution Providers Certification Board.⁽³⁸⁾

The division and the board have developed rules that require minimum education and experience requirements for licensure.⁽³⁹⁾

Only licensed mediators should conduct domestic mediation sessions. To the extent possible, parties should use mediators specializing in domestic mediation. If the parties cannot agree upon a mediator, the court should have the authority to appoint a mediator.

The court should consider the use of court commissioners as mediators. The court should develop a program of mediation for low income parties similar to the current pilot project in the Fourth Judicial District. There should be a sliding fee scale based upon income with the waiver of fees for indigent parties.

e) Other Methods of Alternative Dispute Resolution

Alternative dispute resolution is usually defined broadly enough to include almost any method of disposing of a case short of the traditional trial. The methods include widely used settlement conferences, arbitration, mini trials, and summary jury trials. However well these procedures may work in general civil litigation, aside from settlement conferences, their applicability in family law cases appears limited. Jury trials are not available in most of the family law cases making mini jury trials inappropriate. Mini trial as used in the Utah Code appears to be trial by proffer.⁽⁴⁰⁾

Proffers are used extensively in Utah courts for the temporary determination of custody, visitation, support, and maintenance, and settlements often occur because of these orders. Reliance upon proffers for a final judgment is inappropriate. Arbitration presents the same disadvantages of an adversarial contest and decision by someone other than the parties as trial to the court.

2. Public Trial and Records

The integration of the domestic jurisdiction of the district court with the juvenile jurisdiction of the juvenile court joins cases that historically have been open to public scrutiny with those that historically have been closed.⁽⁴¹⁾ During the debate, the task force did not consider closing those hearings that now are open. The discussion of the task force focused on whether to open juvenile court hearings that now are closed.

There is no uniformity among states on the issue of confidentiality in juvenile courts. The proceedings in some states are generally open while those in other states are generally closed. Most states have an amalgamation of the two ideas, such as opening proceedings in some instances and not others, or opening proceedings to the press and not the public, and requiring confidentiality of names. Many states allow judges to balance interests on a case-by-case basis.⁽⁴²⁾

The historically recognized reason for confidentiality of juvenile court proceedings is that of rehabilitation. Under the doctrine of parens patriae, or the state acting in place of the parent, juvenile proceedings are separated from adult proceedings to shield young people from adult criminals and the strict punishment given to those persons. It was believed that separation could prevent juvenile delinquents from becoming adult delinquents. These separate proceedings became confidential to prevent disclosure of names and offenses to the general public. It was believed that this confidentiality would further promote rehabilitation.⁽⁴³⁾

During the last one to two decades, the purposes of the juvenile court have changed. Confidentiality may no longer serve these new purposes. Utah and other states have implemented laws to emphasize punishment of juveniles and the protection of society from juvenile actions.⁽⁴⁴⁾ These changes were instituted after studies revealed dramatic increases in juvenile crime, particularly repeat offenses. Because of the growth in both first time offenders and repeat offenders, it appears that the goal of rehabilitation is not well served by confidentiality. As the focus of the juvenile court shifts to include public safety, public knowledge of the nature and extent of juvenile crime in general as well as knowledge of particular offenses takes ascendancy over the privacy interest of the offender.

In balancing the interests of the public and the parties to open or closed proceedings in the family department, the following factors should be considered.

Publicity of juvenile crimes may lead to additional delinquent acts either because a juvenile will be labeled and will act accordingly, or simply for additional notoriety. However, studies show that there is already a high rate of recidivism under the cloak of confidentiality. This indicates that juveniles have other reasons for committing crimes.⁽⁴⁵⁾ Publicity may stigmatize juveniles, hindering any rehabilitative progress they might make. However, this claim loses force when it is considered that those who know the juvenile, such as family, friends, neighbors, and teachers, will likely learn of the delinquency through other means. Juvenile court judges on the task force reported that even in urban settings information regarding the identity of a juvenile in court was known among the juvenile's peers. The long term aspects of stigmatization, such as diminished employment and educational opportunities, can be resolved through effective expungement and sealing of records.⁽⁴⁶⁾

The implementation of due process requirements has formalized proceedings to the point that opening them to the public will not constitute an intrusion on the relationship between the judge and the accused.⁽⁴⁷⁾

Opening juvenile court proceedings may:

62. impress upon the offender the seriousness of the proceeding;
63. increase public awareness of the nature and prevalence of juvenile delinquency;
64. enhance the performance of attorneys, judges, and court personnel;
65. increase the pace at which juvenile court reform is achieved;
66. improve the veracity of juvenile court testimony;
67. encourage other victims to come forward; and
68. serve as a deterrent by publicly teaching the consequences of criminal conduct.⁽⁴⁸⁾

In the opinion of the juvenile court judges on the task force, open proceedings will translate directly into more efficient proceedings. A proceeding as simple as an arraignment is complicated in the case of a juvenile because of the need to exclude from the courtroom persons not connected with the case. If arraignments are made public, persons associated with the next case can be present and made ready during the arraignment of the prior case.

The task force recommends that proceedings in the family department be presumed open unless closed by the judge in a particular case or hearing. In order to reduce the time spent in determining whether to close proceedings, the court should develop by rule a procedure to close the entire case.

In determining whether to close a case or hearing, the court should consider factors such as the following:

69. the interests of the juvenile;
70. the interests of a victim, especially a child victim;
71. the interests of other persons involved in the case;
72. the interest of the public in the development and disposition of the case;
73. whether related proceedings are open or closed;
74. the interest of the public in understanding disputes of this nature;
75. the interest of the public in ensuring that court proceedings are conducted fairly; and
76. the availability of other mechanisms less comprehensive than closure that will protect privacy interests, such as prohibiting the publication of the name or image of a person.

In determining the interests of the juvenile, the victim, or any other person associated with the case, the court should consider that those interests may favor public access to proceedings or may favor privacy. The public's general interest in understanding disputes or in ensuring that court proceedings are run fairly may appear to be of less concern than the specific interest of an individual in private proceedings. This appearance may be due to the conclusion that closing one hearing or case may not seem an intolerable burden upon public access. The judge, therefore, in determining whether to close a proceeding or case, should consider also the effect of a consistent practice of closure.

The task force recommends four exceptions to the general rule that proceedings in the cases assigned to the family department are open. The records and proceedings in the following case types and hearing types should remain closed as they are under current law:

77. Child protective proceedings under a petition alleging the abuse, neglect, or dependency of a minor.
78. Adoptions.
79. Civil mental commitment proceedings under Title 62A.
80. Mediation and other ADR sessions.
81. Meetings for the non-judicial adjustment of a case, pretrial conferences, and settlement conferences.

The court records produced by and in preparation for public hearings should also be available to the public in the same manner that such records are now available in the district court. The exceptions noted by the Government Records Access and Management Act, such as draft opinions, judges notes, and the like should apply. The other major exception to public access to records is the distinction between the legal file and the social file maintained in each case.⁽⁴⁹⁾

The legal file should be made available to the public. The social file should remain protected. This distinction between the legal and social files is similar to the protection afforded the report of the presentence investigation in criminal cases in district court.

1. Appeals

Currently, all or nearly all of the appeals of the types of cases recommended for the family department are to the Court of Appeals. The task force recommends that all appeals from the family department be to the Court of Appeals.

2. Hours of Operation⁽⁵⁰⁾

The task force recommends that local courts consider developing extended hours of operation for select proceedings. The select proceedings fall into two broad categories: emergency matters for the protection of a person and routine matters for which a daytime court appearance may be unreasonably burdensome financially for the parties.

Routine matters may include proceedings for default divorce judgments and enforcement of orders. Emergency protective matters may include domestic violence protective orders and detention and shelter hearings.

Although extending court hours beyond traditional business hours will improve access to the courts, there are significant costs involved. To the extent that cases heard in the evening represent a shift in existing cases heard during regular business hours, personnel costs may be controlled by developing split or swing shifts of judges and staff. If improved access to courts yields an increase in cases filed, the need for additional personnel can be anticipated. Building operation costs will increase. Building operation costs include utilities, such as heating, cooling, and electricity. Building operation costs also include security. Because the need for security officers is a function of hours of operation and not caseload, security personnel costs cannot be controlled by swing shifts. Extended hours of operation mean increased security costs.

If a court extends the hours of operation beyond regular business hours, the court should encourage the participation of the local bar in making legal services available during the expanded hours.

3. Facilities

The construction of new courthouses should accommodate all trial court cases in one facility. Although implementation of the family department will be more difficult in existing courthouses that separate district court and juvenile court functions, implementation is not impossible. Modern communication and data processing technology makes linkage of multiple locations more feasible than before.

The formation of the family department should have no adverse impact on the Salt Lake Courts Complex. The court complex program designers have been aware of the possibility of a future family department for some time. The programmers' foresight has resulted in a program for the facility that emphasizes the common features of courts rather than their unique or different features. Over specializing the design of a courthouse to meet the needs of the family department will cause as many problems as over specializing for any other type of court.

4. Rules of Procedure

The rules of procedure applicable in the juvenile court and those applicable to domestic proceedings in the district court, including rules of the Supreme Court and Rules of the Judicial Council, should be integrated into a unified body of law.

In developing such unified rules, the advisory and adopting authorities should consider innovative procedures in light of the recommendations of this report and in light of opportunities presented by the formation of a family department of the district court.

Return to Table of Contents

Notes

1. See Appendix A: History of Utah Juvenile Court Studies beginning on page 91.

2. American Bar Association Standards Relating to Trial Courts, Standard 2.35.

3. Symposium, Recommendation 6 and 9. Pages 4 - 5.

4. Final Report of the Commission on Justice in the Twenty-first Century, Recommendation 4.6 at page 52.

5. Clerical divisions to manage high volume or other cases may be warranted, but judicial assignments within the family department should not be specialized.

6. Hurst, Hunter, Judicial Rotation in Juvenile and Family Courts: A View from the Judiciary, 14 Juvenile and Family Court Journal 13, 16, 17 (1991).

7. See the section entitled "Public Trial and Records" beginning on page 73.

8. Pozanski, Margot M and Bassett Scott, A Family Court for Michigan?, Michigan Bar Journal 657, 658 (July 1987).

9. For a more detailed explanation of individual calendaring, see the section entitled "Individual Calendar" beginning on page 66.

10. For a more detailed explanation of direct calendaring see the section entitled "Direct Calendar" beginning on page 66.

11. See the section entitled "Advocacy for Services" beginning on page 41.

12. See the section entitled "Models Considered" beginning on page 17 and the section entitled "Specialization" beginning on page 27.

13. See Symposium, Recommendation 6 at page 4.

14. In the transition to its family department, the state of Florida is appointing a case coordinator for each judicial circuit. The New Jersey Family Court has a Family Crisis Intervention Unit similar in scope to the Utah non-judicial adjustment program. The Monmouth County New Jersey Family Court has a pilot program for Integrated Case Management Teams similar to the ABA recommendation.

15. America's Children at Risk: A National Agenda for Legal Action, American Bar Association Working Group on the Unmet Legal Needs of Children and their Families, at 55 (July 1993).

16. The Child Welfare Reform Act directs the formation of interdisciplinary teams for developing a treatment plan for children removed from the home. 62A-4a-205.

17. This function conforms to the recommendations of the Commission on Justice in the Twenty-first Century. Recommendation 1.1 at page 32.

18. Children's Justice Centers currently exist only in Ogden, Provo, and Salt Lake City.

19. See The Final Report of the Commission on Justice in the Twenty-first Century, Recommendation 1.8 at page 34.

20. 78-3a-21 and 78-3a-64.

21. America's Children at Risk: A National Agenda for Legal Action, American Bar Association Working Group on the Unmet Legal Needs of Children and their Families, at 55 (July 1993).

22. See The Final Report of the Commission on Justice in the Twenty-first Century, Recommendations 1.1 and 1.2 at page 32.

23. 30-6-4.

24. A large part of the public perception of the effectiveness of the court is directly related to the ability of the court to enforce its own orders. Szymanski, Linda, Theresa Homisak, and E. Hunter Hurst, Policy Alternatives and Current Court Practice in the Special Problem Areas of Jurisdiction Over the Family, National Center for Juvenile Justice (1993).

25. Children and Families First: A Mandate for America's Courts, National Council of Juvenile and Family Court Judges, 4 (1993).

26. The Child Welfare Reform Act of 1994 created a grievance council for the users of services through the Division of Family Services. 62A-4a-102(3). The objective of the council is to hear complaints and make recommendations for services different than being provided by Division of Family Services. Since the parties have the court itself as a forum for review of specific treatment plans and the appeal of court orders, there is probably no need for a grievance council within the judiciary. However, providing the users of services with an easily accessible complaint process is important.

27. The National Family Court Symposium uses the term "direct calendaring" as the equivalent of "one family - one judge," and the task force adopts that usage of the term. Other states may use the term direct calendaring to mean the equivalent of individual calendaring as used in this report. Final Report of the Senate Task Force on Family Relation Court, Senate Task Force on Family Relations Court, California (November 1990).

28. See Final Report of the Commission on Justice in the Twenty-first Century, Recommendations 4.5 through 4.7 at pages 52 and 53.

29. See the section entitled "Case Coordination" beginning on page 59.

30. The concept of direct calendaring is often likened to the concept of the family doctor. If this analogy holds, the application of the concept should be similar to a health maintenance organization where a person may have a primary physician, but is treated by other providers as well.

31. In the section criteria of multi-door courthouses to assess a case for assignment to one of several different ADR procedures, the criteria for mediation fit domestic litigation closely:

a. Cases involving a bench trial where it would be inappropriate for the judge to become involved in intensive settlement discussions.

b. Complex cases requiring creative solutions which cannot be fashioned through traditional adjudication.

c. Cases in which the parties have a continuing relationship.

d. Cases in which the dispute is caused by poor communication between the parties.

e. Cases in which the parties seek a private forum for the resolution of their dispute.

Plapinger, Elizabeth and Shaw, Margaret, Managing an ADR Program, The Court Management and Administration Report, at page 5 (May 1993).

32. Melton, Jerry W., Mediation: An Effective Method for Resolving Family Law Disputes, 56 Texas Bar Journal 484, 485 and citations therein (May 1993).

33. Although it is a minority position, the Final report of the Commission on Justice in the Twenty-first Century recommends that "A program of mandatory mediation should be developed as an alternative to the traditional adversary process in some categories of domestic relations cases. The Judicial Council or Supreme Court should establish, by rule, criteria which identify the types of cases appropriate for referral to mediation and the qualifications of court-appointed mediators." Recommendation 1.17 at page 35. A majority of Commission members favored mandatory arbitration of professional malpractice cases. Recommendation 1.11 at page 35.

34. Pozanski, Margot M and Bassett Scott, A Family Court for Michigan?, Michigan Bar Journal 657, 659 (July 1987). This survey of attorneys in four states with a family court showed that 95% of the respondents from Delaware, which has mandatory divorce mediation, reported a savings in time and 76% reported a savings in money.

35. Section 78-31b-7 very clearly establishes the confidentiality of mediation proceedings and prohibits the introduction into evidence of communications made during mediation. The statute is drafted as an exclusionary rule not an evidentiary privilege. The statute precedes in time the promulgation of Rule of Evidence 501, which makes inapplicable any statutory privilege not in existence on the effective date of the rule and any preexisting statutory privilege in conflict with the privileges recognized by Rules 502 through 507. The rule became effective April 15, 1992. The statute became effective April 29, 1991. Although 78-31b-7 is not listed by the advisory committee note as one affected by the rule, the committee's research occurred in 1989 prior to the effective date of the statute.

Rule of Evidence 408 provides that evidence of conduct or statements made in compromise negotiations is not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

36. Woods, Laurie, Mediation: A Backlash to Women's Progress on Family Law Issues, Clearinghouse Review 431 (Summer 1985)

37. Woods, Laurie, Mediation: A Backlash to Women's Progress on Family Law Issues, Clearinghouse Review 431, 435 (Summer 1985)

38. 58-39a-5.

39. Utah Administrative Rules 156-39a-1 et. seq.

40. 78-31b-1(6).

41. Until the Second Special Session of the 1993 Legislature, all hearings and records of the juvenile court were closed to the public. Legislation during the Special Session opened the records and hearings in the prosecution of felony level charges against minors 16 years of age or older. During the 1994 General Session, the Legislature permitted the "victim of any act charged in a petition" the right to be present at juvenile court hearings and to copies of certain juvenile court records. 78-3a-33.

42. Utah law has long permitted the juvenile court judge the discretion to admit members of the press if the prosecution is for a felony level offense. 78-3a-33.

43. Mirell, Douglas E. and Fainer Jr., David C. Delinquency Hearings and the First Amendment: Reassessing Juvenile Court Confidentiality Upon the Demise of "Conditional Access", 13 University of California, Davis Law Review 123 (1979).

44. 78-3a-1. Promotion of the public safety and the individual accountability of the juvenile is the first listed purpose of the juvenile court.

45. Mirrell at 153-155.

46. Id. at 156, 157.

47. Id. at 158, 159.

48. Id. at 158 - 169.

49. See Code of Judicial Administration 7-201(2) and 7-302 for the definition and examples of each.

50. The Commission on Justice in the Twenty-first Century recommends that courts extend their hours of operation. Recommendation 1.16 at 35.

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