Utah Family Court Task Force

Summary of Preliminary Report

This summary of the preliminary report of the Utah Family Court Task Force highlights the debate and preliminary recommendations of the Task Force. Although the Task Force was commissioned by the Judicial Council, the preliminary report does not represent the position of the Judicial Council. This summary and the full preliminary report will be circulated at public hearings and special briefings between June and August 1994 for the purposes of discussion and gathering comments. The Task Force does not seek endorsement of the preliminary report. The preliminary report may be amended in response to comments received prior to submission of the final report of the Task Force to the Judicial Council in September 1994. Written comments may be directed to the Administrative Office of the Courts. A copy of the full preliminary report is available upon request at the Administrative Office of the Courts, 230 South 500 East, Suite 300, Salt Lake City, Utah 84102.

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Introduction

The task force recommends against the complete unification of juvenile and district court without differentiation of case types. Although over specialization can weaken the judiciary, debate among task force members showed a strong commitment to the strengths that specialization can bring to family law cases.

The task force recommends against integrating the juvenile court as a department of the district court. Creating a juvenile department within the district court would produce, at best, marginal benefits at significant cost caused by the disruption attendant upon such a change.

For reasons developed more fully in the report, the task force recommends the formation of a family department within the district court. The case types to be assigned to the family department are specified in detail in the section entitled "Cases Assigned to the Family Department" beginning on page 29.

After developing these preliminary recommendations and presenting them to the Judicial Council and the Utah State Bar Commission, the task force will conduct a series of special briefings of the Boards of Judges, the judges and staff of each judicial district, representatives of affiliated agencies, public interest groups, and several public hearings. The task force anticipates comments being aired at these briefings and public hearings that may highlight an issue not considered in the preliminary report or that may cause the task force to reconsider an issue previously debated. The task force will reconvene at the close of these briefings and public hearings to assimilate into its final report amendments resulting from comments received.

Need For A Family Department

The task of the family court -- to adjudicate the rights and responsibilities of the parties, to regulate the continuing relationship among family members, and to do so within an emotional cauldron -- is a delicate and complicated task. Families in court are often there under compulsion or as a last resort. They may have expectations for success greater than can be achieved by the court.

Although reports of other states often cite the delay of domestic cases as one reason for creating a family court, and although one study shows significant improvement in the timeliness of dispositions in a family court, delay is not a problem in the Utah trial courts.

Reorganization of the courts alone is not sufficient. The family department must reorient itself to:

• foster nonadversarial procedures for the dissolution of marriage and the enforcement of orders;
• "protect children and families when private and other public institutions are unable to or fail to meet their obligations;"
• enforce the constitutional and statutory rights of the parties and the rules of evidence and procedure;
• coordinate multiple litigation facing a single family; and
• serve as the center for coordinating the provision of services to families before the court.

In Salt Lake County 53% of all family law disputes involved a family with at least one prior or concurrent family law dispute in the courts. The highest correlation was with cases of juvenile delinquency in which 71% of the cases involved a family with at least one prior or concurrent family law dispute. The highest frequency of related cases often occurred across the current jurisdictional boundaries.

The judicial skills necessary to blend law and treatment are different from the expertise a judge develops in the litigation of other criminal and civil cases, but not less attainable for that difference. "A judicial system which is responsible to determine difficult issues of medical malpractice, product liability, anti-trust or psychiatric defenses to criminal charges can be reasonably expected to develop and apply the expertise of its judges and staff necessary to comprehensively resolve family law matters."

Much of the need for a family department lies in the potential of the department: the potential to accomplish in a unified court what separate trial courts have not been able to accomplish. The goals of the family department are achievable within the existing structure of separate trial courts, but the integration of separate jurisdictions establishes a stronger environment in which to achieve these goals.

• A family department of the district court can address family law disputes better than our current court structure because of :
• the unique nature of family disputes;
• our current fragmented jurisdiction;
• the multiplicity of related cases affecting families;
• specialization of the judges and staff; and
• the potential to provide for improved judicial service to the parties and the public.

Cases Assigned to the Family Department

Generally, the cases to be assigned to the family department comprise the current jurisdiction of the juvenile court, the domestic jurisdiction of the district court, and some select probate matters.

Aggravated murder, 76-5-202, by a person over the age of 16 was placed within the exclusive jurisdiction of the district court during the Second Special Session of the 1993 Legislature. Under the task force recommendation, prosecution for this offense remains in the general department. Prosecution of a minor under the age of 16 for what would be aggravated murder if committed by an adult is assigned to the family department.

Current law regarding the certification of a minor to stand trial as an adult in the general department and the discretion of the prosecutor to file a criminal information against a minor in the general department remains unchanged.

The task force recommends that intrafamily crimes and minor traffic offenses not be prosecuted in the family department.

The Family Department and the Delivery of Services

The family department is first and last a court of law, but once the legal basis for court action is established, the authority to apply principles of equity in the disposition of the case is well recognized. Equity has as hallowed a tradition in Anglo-American jurisprudence as the law. The legitimate application of recognized principles of equity need not be at the expense of the protection afforded parties by due process. The rule of law need not interfere with the application of an equitable remedy.

Using the considerable authority of the court for the reconciliation of the parties to a divorce is without merit. The family department should recognize and support the desirability of strengthening and preserving functional family ties. The family is the most important unit for the moral, emotional, and social development of children. But the court is not the proper forum for the reconciliation of the parties in a vain attempt to preserve the family.

The obligation to dissolve the marriage does not preclude the use of education programs to teach the parties of their rights and responsibilities, to teach the parties of the impact of their divorce upon their children, and how to minimize the adverse impact. The obligation of the court does not preclude the use of mediation programs and other alternative dispute resolution techniques to empower and encourage the parties to settle current and future disputes on their own initiative without -- or with minimal -- court intervention. These programs are intended not to reconcile the parties but to ease the transition of the parties and their children through the divorce, and, if possible, to avoid or to solve future disputes.

The greater the quality and diversity of service programs the greater the ability of the family department to craft a treatment plan specifically suited to the needs of a family. The family department should develop a leadership role in partnership with community and government organizations for the advocacy and stewardship of service programs. The family department should promote collaboration among community and private groups and state, county, and municipal organizations within the executive, legislative, and judicial branches of government to develop innovative strategies for the timely delivery of community based services to families and to avoid costly duplication.

Court involvement in the regulation of services should be limited to participation in developing standards for the education and experience of providers. The regulation itself should be left to the authority of the Division of Occupational and Professional Licensing, or some other appropriate regulatory agency.

Rather than assume the difficult, and probably futile, task of determining the "ideal" placement and method of administration of the many available programs and services, the task force accepts the current structure as the environment in which the family department will initially operate. This structure may merit changes in the future, but changes should be developed with the full participation of the agencies involved and only after a family department has been established and has gained some experience.

Family Department Organization and Operations

Separate 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. This task force also recommends that family law matters be litigated within a department of the district court.

Permanent Judge Assignment

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.

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. 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.

Administration

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.

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

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

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

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.

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.

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

Case Management

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

make better use of judicial time and expertise by providing more and better information to judges and by assuming the administrative burdens that now fall on judges;

improve the ability of families in court to negotiate the legal system by assisting those cases that need assistance; and

ensure that families get the services they need and that none fall through the cracks by collecting all of the functions of the court related to programs and services available to families before the court.

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

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.

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.

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

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.

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.

Computer generated indexes should be able to 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:

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

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 the more intensive intervention for the cases that need it.

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.

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.

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.

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.

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

Calendaring

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:

• judicial accountability;
• just and timely decisions;
• full judicial workloads;
• exposure of the judge to the broadest possible spectrum of legal issues;
• distribution of legal issues to the greatest number of judges; and
• protection from manipulation.

Mediation of Domestic Disputes

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.

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.

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.

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.

Public Trial and Records

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.

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:

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

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.

Hours of Operation

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.

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.

Transition to a Family Department of the District Court

The task force recommends that enabling legislation for a family department not be effective earlier than one year after the effective date of court consolidation. Although the task force recommends delaying the effective date of enabling legislation, the task force urges the Judicial Council to adopt this report and establish enabling legislation as a priority legislative goal.

In the interim, districts should be permitted, but not required, to establish what is in essence a family department of the district court based upon voluntary assignment by the Chief Justice of judges of the district and juvenile courts to adjudicate cases within the jurisdiction of the other court.

Each judicial district should be responsible for developing a plan for the implementation of a family department. Local court structure and internal operating procedures should conform to general principles established by statute, which in turn should be drafted in conformity with the task force report. Procedures that affect the parties and lawyers in the development, presentation, and adjudication of cases should be uniform throughout the state. There also exist basic data elements of the management information system that must be uniform throughout the state. However, provided that local implementation plans meet these minimums, each judicial district should be permitted to devise methods of internal operations that meet local needs.

The task force recommends that judicial appointment to the family department be prospective only. Incumbent judges should be permitted to volunteer for the new assignment, but absent that commitment, family department judges should be chosen as new appointees by the governor.

Until the family department can be fully implemented, incumbent judges should be required to continue to adjudicate that portion of the family law jurisdiction historically within their respective courts.

To achieve some of the objectives of the family department in the interim, the courts should more fully develop and implement within the district court and juvenile court as many of the programmatic and procedural recommendations of the task force as are feasible. This should include, in particular, case managers with responsibility to coordinate the disposition of related cases by the separate district and juvenile courts and to develop over time a fully integrated case management system.

Incumbent court commissioners of the district court, juvenile court, and circuit court should be assigned to the unified district court, and assigned cases within their authority as determined by the needs of the court.

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