RICHARD A. CURTIS
COMMISSIONER
Los Angeles County Superior Court
400 Civic Center Plaza
Pomona CA 91766
(909) 6203064
FAX 620-6547
May 9, 1993
Hon. Phillip Isenberg
Chair, Assembly Judiciary Committee
State Capitol, Room 6005
Sacramento CA 95814
Re: AB 2116 (Solis)
Dear Assembly Member Isenberg and Other Members of the Committee:
I have been a Commissioner of the Los Angeles County Superior
Court for the last 10 years.
Nine-and-a-half of those years have been spent presiding
over a domestic relations courtroom.
While I originally requested your permission to speak
before this Committee in my letter of April
29, not as a representative of the Los Angeles County
Superior Court, but as an individual jurist, I
have since shared my views with other members of the Family
Law bench in my county. I have
warned them that I am going to state some pretty strong
viewpoints which might be better
expressed in my capacity as an individual jurist unfettered
by the constraints of speaking in an
official capacity, but I have been given a vote of confidence
that my judgment and insight based on
a decade of domestic relations decision making experience
are trusted and I may say anything I
deem appropriate on behalf of the court. So now I am presenting
my views to this Committee both
as a representative of the Family Law departments of the
Los Angeles County Superior Court and
as an individual jurist. Apart from my fellow bench officers
I am presenting on behalf of no group
save perhaps the children of divorce of California who
have no official representatives before your
Committee. I am also appearing in the capacity of one
who is interested in maintaining balance in
our judicial system and in our body of law.
I have recently presented many (not all) of the same views
to your counterpart committee in the
Senate regarding SB 1159 (Watson), a measure which I told
them addressed a serious issue: that
of the problems raised when a separated parent determines
to relocate the children's residence
some substantial distance away from the other parent and
a community which the children have
become used to. Its proponents are essentially the same
people you will see appearing in support
of this bill before this Committee. I did not agree with
the approach the proponents of SB 1159
offered for solving the serious problem, and I provided
the Senate with what I considered to be a
much more child-centered, equitable and comprehensive
approach.
I am not willing to accord this bill the similar dignity
of recognizing that it addresses any serious
Issue. It does not. It merely serves as an implement to
advance the underlying goal of its
proponents: that of replacing California's modern child-centered
policy of deciding children's living
arrangements based upon the "best interests" of the child
with the Supposedly more modern (but
actually archaic) notion that their living arrangements
should be determined by trying to define
which parent is (or has been) the child's "primary caretaker"
and then presuming that the child's
best interest will be furthered by maintaining that status.
You will not see that phrase used in this
bill, but you must keep it in mind when examining it,
and you must question the proponents about
their intent behind the entire package of "reforms" they
are introducing one-at-a-time (but often in
bundles) to this Legislature. They were cagey enough not
to use the phrase in this bill, but they
slipped up while they were attempting to amend SB 1159
to rescue it from its original foolishness,
and they actually used the phrase "primary caretaker"
in connection with a lot of inappropriate
public policy statements they wished to promulgate. I
shall return to this subject later.
WHAT I SEEK TO ACCOMPLISH IN MY COURTROOM
Divorce is a process -- a growing and learning process.
When people come to court in the early
stages of their divorce they have no knowledge or training
about how to go through it unless they
have been divorced before. I view my role as judge as
not being merely a decider of disputes but
as being an educator as well. If I can help divorcing
couples get through the divorce process, both
legally and emotionally, while avoiding the traps and
pitfalls in which I have seen others before
them become ensnared, then I consider myself to be fulfilling
my role. On the mornings when new
divorce cases come to court I spend about a half hour
before cases are called talking to the
audience about the process, describing how decisions are
made, telling them about Conciliation
Court and the importance of going to the mediator with
the attitude that they will be able to agree
on arrangements for their children rather than brushing
off the process and running back to the
courtroom to knock heads with each other. I show them
examples of other people's case files
ranging from thin, inexpensively settled cases to massive,
multi-volume contested cases generating
attorney fees exceeding $100,000. I ask them to think
about whether they would rather spend
their money creating that kind of case file or on sending
their children to college.
I recognize that they are often bitter, but always in emotional
turmoil, worried, nervous, and scared
-- both about the court process and about their vision
of the future for both themselves and their
children. Therefore, I make available to them a reading
list I have created containing reviews of a
wide variety of books on many topics of interest to divorcing
couples. I encourage them to read
some cf the books in order to use the divorce process
to grow as a person. Among the books I
recommend to them are the magnificent Vicky Lansky's Divorce
Book for Parents (Signet (l989])
and to help their children with their fears and worries
Dinosaurs Divorce (Little, Brown (l986) and
Richard Gardner's Boys and Girls Book about Divorce (Bantam
(l97O]). A substantial portion of
the reading list presents books which are designed to
get people to think about their lives. One
very valuable book suggests that we solve life's problems
by picking up a mirror with which to
examine deeply our own behavior and values and to make
positive changes in the only person we
can change (ourselves) instead of picking up a magnifying
glass with which to 5elf-righteously
examine the other person's behavior in order to blame
and accuse and to have a "bad object" upon
whom to project all of the negative things within our
own personalities which we refuse to
recognize and come to terms with.
Among the things which I have learned in my years on the
bench is that not only is the parties'
emotional and legal divorce a process, but so is the creation
of appropriate custodial arrangements
for the children. It is rarely productive to try to make
permanent custody decisions early in the
divorce process when the parents and children are at the
height of their emotional imbalance --
which is what the proponents of this bill would have us
do by rote formula. Custody determinations
seem to be best worked out over time as the parents and
children settle down and regain stability.
Successful post-separation parenting is an education process
as well. We attempt to educate
people that the family exists after separation and that
it is being transformed into a new shape
which still has the same people in different locations
and with the possibility of adding more
members. That education process into successful post-separation
parenting is assisted
tremendously by the existing body of California statutory
and decisional law which is
child-centered and emphasizes frequent and continuing
contact with both parents, free access to
information about the child, and shared parenting responsibilities.
The proposed bills threaten to seriously disrupt that established
body of law -- unnecessarily in my
view -- and to make it far more difficult to obtain cooperative
parenting from people in the future.
WHAT WE HAVE DONE IN THE EAST DISTRICT
I have presided over a domestic relations department in
the East District of the Los Angeles
County Superior Court (Pomona) since 1986. The East District
consistently has the highest or
second highest number of domestic filings of all the county
branch courts (5,206 for fiscal year
1991-1992, more than many California counties), but our
dispositions always meet our filings. We
have no backlog. The reason we have no backlog is not
because the public is shuttled through the
system like cattle, but because we have succeeded, through
the educational process I spoke of
above, in changing people's expectations and motivations
from litigation to settlement. I very clearly
set forth for the public my expectation that the majority
of them will settle their cases, for their
benefit not mine, and the majority of them live up to
that expectation.
As a result our local family bar has been transformed from
fighting tooth and nail with each other to
one with great collegiality and cooperation. They are
comfortable with representing their clients'
best interests but viewing those best interests to be
served better by joint resolution than by
exposing their clients to the hazards, pain and expense
of litigation. Members of the Family Law
bar from a wide geographical area surrounding our courthouse
(including practitioners from three
counties) take turns as volunteer mediators at our mandatory
settlement conferences which frees
up the commissioners' time to hear cases which must be
litigated.
A smaller but very dedicated group of local Family Law
attorneys serve on a panel from which the
court appoints attorneys to represent children under Civil
Code section 4606 in contested custody
matters. Their services are invaluable in assisting the
court to fulfill its duty to protect the best
interests of the children who come before it. They seek
the advice of, and if necessary the
appointment of, psychologists to assist them in understanding
the children's special needs in
complex cases. The attorneys are usually able to help
the parents come to an understanding of their
children's needs and the best ways of meeting those needs
through cooperative post-separation
parenting, heading off many an incipient custody battle
with just a brief court appearance or two.
They thereby save the parents thousands of dollars of
attorney fees and costs and save both the
parents and the children the emotional pain and turmoil
of a prolonged custody battle. If, however,
the parents insist on going forward with a custody battle,
the children are represented in it and have
someone to shield them from the fallout of the conflict.
These attorneys are sometimes paid at their
regular rate when the parents can afford it, but quite
frequently they serve at reduced rates and
sometimes serve pro bono.
The Family Law bench, bar, and clerk's office are currently
cooperating with two local battered
women's shelters and other community organizations to
set up a domestic violence clinic within the
courthouse where victims can go for immediate assistance
in obtaining restraining orders.
The atmosphere which we have succeeded in creating in our
courthouse is threatened to be upset,
as it will in all California, if these bills are passed.
THE DEFICIENCIES AND DEADLY EFFECT OF AB 2116
I am not going to engage in a serious discussion of AB
2116 because it deserves no serious
discussion. It is a mean-spirited attack on joint custody
brought on behalf of angry, embittered
parents who are incapable of cooperation in their children's
best interest and who only wish to
bend the court system and our healthy, child-centered
body of law to their end of controlling their
children and controlling the other parent through their
children. Thankfully the proponents do not
represent the mainstream of divorcing parents. It may
encourage the Legislature to know, as I am
sure it already does, that the overwhelming majority of
Family Law cases are settled without a
hearing. Were it otherwise, given the huge number of domestic
filings throughout the state, the
system would collapse of its own weight. Thus, most parents
have already taken to heart this
state's existing public policy expressed in Family Code
section 3020 that we "encourage parents to
share the rights and responsibilities of child rearing
in order to effect (the] policy" that their minor
children be assured of frequent and continuing contact
with each parent. Indeed, most parents
realize that without someone in the court system having
to tell them what is appropriate for their
children. Another large group of parents who do not come
by that concept on their own have to
come to court for some kind of pretrial hearing and they
soon learn the concept and its benefits
from their contacts with a Family Court Service mediator,
their own lawyer, the children's lawyer,
or a bench officer such as myself who will take the time
to educate them.
It helps to recognize, and Family Law judges frequently
have to remind even themselves, that the
hotly contested custody hearings they see in court do
not represent the mainstream of divorcing
and separating parents but only the most contentious and
disagreeable of them. As one veteran
domestic relations judge – J.E.T. Rutter of the Orange
County Superior Court -- once told a
group of us at a statewide meeting: "You know, some people
we mediate and mediate and cajole
and persuade, but you've got to realize that there are
about 5% of them that aren't too tightly
wrapped, so for them you might as well face up to holding
a hearing and making a decision." I'm
here on behalf of the 95%, and the proponents of this
bill are here to upset the health and balance
of the whole system on behalf of the five percent who
"aren't too tightly wrapped."
As this Legislature should well know, the appellate courts
interpret legislative intent as much by
what is stricken from a former statute as by what is expressed
in an amended statute. If the
backers of this bill manage to hornswoggle the Legislature
into passing this bill they will have
succeeded in getting you to say, "The public policy of
the State of California is to discourage
parents to share the rights and responsibilities of child
rearing." They will have succeeded in getting
you to say that "joint legal custody" means that each
parent shall have the right to make selfish and
conflicting decisions relating to the health, education,
and welfare of a child guaranteed to put the
child right back in the middle of their petty personal
conflicts where the child has always been.
The absolute worst aspect of AB 2116, however, is its effort
to prohibit trial courts from awarding
joint custody if either parent objects. No trial judge
enjoys seeing the "not-too-tightly-wrapped"
five percent coming back time after time with their continuing
disagreements. Every trial judge has a
few cases wh~ch elicit a silent groan every time the courtroom
door swings open and in they walk.
If he or she has made a court-imposed joint custody order
in an effort to educate these obstinate
people into trying to be appropriate parents for their
children without anything to show for the
effort except more order to show cause hearings, it won't
be long before the judge changes the
arrangement into a sole custody order. So there is no
real problem for the
"not-too-tightly-wrapped" five percent being forced to
live with such an order for very long under
the law as it now exists. But it is very important that
the trial court continue to have the power to
impose joint custody on the far larger majority of divorcing
couples who come to court at the
outset of their cases tightly wrapped but in an uncooperative
frame of mind. If they are forced to
parent under a joint custody order and are given co-parenting
instruction and educational materials
by the court, by the mediator, by their attorneys or the
child's attorney, or by outside agencies,
most such parents will learn to put aside their differences
for the sake of giving their children a
peaceful life and the benefit of having two involved parents.
You simply must not allow an effective
and progressive legal system to be jerked around by the
"not-too-tightly-wrapped" five percent.
In 1988 the custody-determining section of the Civil Code
was amended to clarify that there is no
presumption for or against joint custody or sole custody
(there never was). The backers of this bill
want not merely a presumption against joint custody, they
wish effectively to destroy it. The
availability of an imposed joint custody order settles
cases. I cannot begin to count the number of
cases in my own experience in which the parent with the
lesser custodial time share was willing to
accept a contact order which was essentially no different
from the average sole custody order with
alternate weekend visitation as long as he or she had
the emotional satisfaction of the label "joint
custody." The phrase standing by itself allows such parents
the satisfaction of having their
importance as a parent acknowledged and their role appreciated.
DESTROYING THE LEGAL SYSTEM ITSELF
Without a public policy that encourages joint parental
involvement after separation and the power
of the court to impose it involuntarily there will simply
be more custody battles. Anyone can see
that, even the proponents of this bill. And that is part
of their grand plan as well. What will be their
answer to all the contentious litigation stirred up by
this bill? A year or two from now they will be
back with the final component -- initial custody determinations
should be made on the basis of who
is the "primary caretaker" and this rote formula will
(in their opinion) preclude custody battles.
The legal system (not to speak of the children of divorce
of California) cannot afford anything that
promotes more custody battles. In the current economy
with the well known budget crisis it is
absolutely imperative that no further overloads be put
on the legal system. Along with the current
lack of adequate court funding, over the past several
years this Legislature has passed bills
introducing into the general field of Family Law more
complicated procedures requiring ever more
complex and detailed findings, many of such bills promoted
by the very people who will be
appearing in support of AB 2116. As a result the conduct
of Family Law litigation and settlement
has become overly time-consuming and expensive -- too
expensive now for the middle class to
hire counsel without exhausting a major part of the community
estate, and yet too complex for a
layperson to proceed without a lawyer.
As fewer and fewer cases are able to be processed in the
legal system without herding people
through it like cattle, due to the complexities of procedure
which the Legislature has enacted lately,
howls of dissatisfaction will arise from the public. And
then the people who are in the middle of
pushing this long-term legislative package your way are
going to be back some day soon saying the
legal system is not responsive to their needs and that
Family Law should go to administrative
boards. Then they will really get justice. Then they will
find out what being treated like cattle is all
about. It does not require much in the way of conspiracy
thinking to deduce that this too is part of
their master plan. They have succeeded in turning the
area of child support into a formulaic field of
presumptions in which computers can make awards with very
limited judicial discretion available.
Once they succeed in getting all their ducks in a row
in the area of child custody (this bill being one
of the principal ducks) they will be able to spring their
big surprise: the Primary Caretaker
Presumption. Then there will be no need for judges. An
administrative hearing officer is perfectly
capable of counting the days (or hours) a child spends
with each parent and determining who the
"primary caretaker" is. The backers of this bill don't
'want equality, they don't want justice, they
don't want individuals dealt with as unique people each
with their own individual needs and
solutions which would be the delivery mode in the courts.
They would be perfectly satisfied with an
administrative hearing system which delivers cookie cutter
results as long as they're playing with a
deck stacked in their favor. AB 2116 is part of the deck-stacking
process.
Watching the proponents of this bill slip and slide and
shuffle and jive as they scramble to amend
and reamend their language to properly obscure their true
intent would be almost laughable if the
end result were not so deadly serious. They have turned
"frequent and continuing contact" into
"regular and continuing contact" on the first try. On
the second try they turned "regular and
continuing contact" into "meaningful, responsible, and
reliable contact." And now on the eve of the
hearing the author has dropped even that in favor of three
"psychobabble" findings imported
directly from the last version of SB 1159. This song and
dance is matched only by their slipping
and sliding over in the Senate as they try to find a formulation
for Senator Watson's "moveaway"
bill (SB 1159) that will come anywhere near the far superior
approach to that problem attorney
Pamela Stettner and I presented the Senate Judiciary Committee.
This constant drafting and
redrafting of their program must be taxing to them. I
am far too wordy to help them out. One of my
fellow commissioners is much more direct. He decided to
draft their legislation for them in five
lines. Here it is:
AB 2116 (Solis)
1. a) The Legislature finds and declares that it is the
public
2. policy of the State of California that children not
have fathers.
3. b) In any proceeding under this part, custody of a
child
4. shall be awarded to the parent to whom the child was
physically
5. closest during the thirty days prior to its birth.
I am not a woman hater. Women have a lot of wonderful qualities
that men would do well to
incorporate within themselves, and they've suffered some
pretty despicable treatment at the hands
of men both in their professional and in their personal
lives. But in domestic relations court I get to
see men and women handing out some pretty atrocious treatment
to each other with their children,
as usual, caught in the middle. Instead of clutching the
so-called "primary caretaker" role as the
determinant of their identity, as the proponents of these
measures would have women carve out
exclusively for themselves, they should be encouraging
men to develop the nurturing aspects of
their own characters so that the children can have the
benefit of two "caretaking" parents in the
best sense of the word, both during and after the breakup
of a marriage. Studies have shown that
single custodial fathers are every bit as capable of nurturing
their children in their own way.
I'm the referee in the war between the sexes. I'm not here
to fan the flames but to heal the wounds
and to get men and women to open-heartedly view each other
with love, respect and forgiveness
-- to accept each other's flaws and failings and to work
to make of themselves whole, functioning
individuals creating a better life for themselves and
their children and a better world for us all.
Although I do accuse the proponents of this bill of a
great deal of underhandedness and dishonesty
(both intellectual and otherwise), I do not attribute
evil motives to them. How could I? They see
themselves as championing the cause of the weak and the
downtrodden against an uncaring legal
system or they see themselves as victims of cruel men
and an uncaring legal system. And the
self-righteousness of their cause imbues them with zealotry
and fervor. But like all zealots, victims,
and self-righteous people they have a peculiarly warped
view of reality which prevents them from
seeing the other side, or in this case, even the middle.
They are very, very dangerous, one-sided
and unbalanced people from whom to take public policy
suggestions. These people have a
legislative program which they have plotted out for years
into the future. When you see the same
faces around here year after year reappearing like a virus
and there is no judge around to counter
what they have to say, just remember what I have presented
here today and tell them to take their
sick, unbalanced, and destructive program and peddle it
somewhere else.
This Legislature and the courts should be promoting love,
harmony, concordance and peace. The
state should promote healing, growth and balance in the
lives of divorcing parents and their
children. I am not suggesting you turn a deaf ear to these
advocates and exclude them from the
process, just receive their message with a highly skeptical
ear and begin opening your ears to the
bench and bar who can help you see the big picture instead
of the myopic one.
THE LEGISLATIVE/ JUDICIAL PARTNERSHIP
The last point made is an extremely significant one for
the future. Unlike the areas of criminal law
and general civil law wherein the Legislature is lobbied
fairly even-handedly by both sides, the area
of Family Law is unique. You as legislators are constantly
lobbied by the fringe groups having
radical programs to sell you. You do not hear consistently
from the vast middle of the Family Law
field represented by Family Law practitioners, judges,
and the overwhelmingly superior numbers of
less contentious divorcing couples who have been well-served
by our progressive and stable body
of Family Law developed over many years by the Legislature
and the courts in partnership.
Consequently, every year that stable and progressive body
of law gets buffeted back and forth and
destabilized by the Legislature receiving input from and
giving credence to only the warped
perspective of the unbalanced fringe groups on the edge
of the field.
The Senate task force has conducted hearings on Family
Law issues at which no doubt many
disgruntled and distressed litigants appeared. Family
Law judges do not have time to go to Senate
task force hearings; they do not have time to go to Sacramento;
they are busy deciding cases.
Family Law lawyers rarely have time to go to task force
hearings and Senate committee hearings in
Sacramento. They are busy appearing in front of the judges
trying to earn a living. Consequently,
task forces and other fact finding bodies are subjected
to far more input from unhappy and
distressed members of the public than they are ever likely
to get from those who stand in the
middle and can speak with some professional and expert
knowledge of the totality of the picture.
Task forces and committees sure are not likely to get
much input from happy and satisfied
customers of the court process. Why would they be motivated
to come to hearings?
Disgruntled litigants hold up an excellent mirror in which
the judicial system may examine its
shortcomings. Disgruntled litigants are, however, a horrible
and unreliable source for curing those
ills because the stridency of their dissatisfaction promotes
overreaction by the Legislature and
imbalance in the opposite direction. Instead, before coming
to final solutions on any measure which
proposes to make sweeping changes in the field of Family
Law, this Committee and the Legislature
should rely on the experts in the trenches -- your Family
Law bench and bar. Every March I meet
with the statewide Family Law judiciary at the California
Center for Judicial Education and
Research Family Law Institute. Over the past nine years
I have come to know the other judges
who perform the same tasks as I in other counties around
the state, and I have found them to be a
group of dedicated, intelligent, caring human beings who
do not want to cause anyone who comes
before them unnecessary grief and pain. They are committed
to seeing that neither the process nor
the parents destroy the lives of the children of divorce.
By the same token, the professional Family Law bar represents
both sides of every issue. They are
intimately familiar with all the details and permutations
that can possibly arise in any kind of case.
Let's keep the legislative/judicial partnership alive
and well in Family Law. Let's set up a system
whereby a committee staffer or someone from a legislative
research office gets together with the
professional staff at the Center for Judicial Education
and Research and with the Family Law
Section of the State Bar to develop comprehensive and
detailed questionnaires about the kind of
legislation that should be passed on any topics of import
in Family Law as they arise. There is
rarely a problem in the Family Law field so drastic that
its solution cannot await a slow and
thoroughly researched process of information gathering.
This Legislature certainly cannot afford to be making sweeping
changes in Family Law based only
on the kind of thin and highly controversial research
which underlies AB 2116. I assure you that
while we may not be able to come to task force hearings
and committee meetings you can expect
an intelligent response from the bench and bar to any
such questionnaires which could be
developed to open up the law making process to a larger
and more stable group.
DIRE CONSEQUENCES
My fear is that if the Legislature should in some misguided
moment pass this inappropriate bill the
children of divorce of California will be deprived of
one of the court's most effective tools for
convincing their parents to leave the children out of
their fights. Then all of my work of the past
seven years to create a courtroom where parents learn
to see things from their children's point of
view and learn to cooperate with each other in raising
their children after separation will be for
naught.
I am sure that your Committee is constantly subjected to
the old saw about the baby and the
bathwater on every contested measure, but it strikes me
as applying with literal force to this
situation. Except it still does not quite fit. If this
bill is passed the baby will most assuredly be
thrown out. But the extremely dirty bathwater won't be
and we'll all have to bathe in it.
Please do not pass this measure out of committee.
Sincerely,
RICHARD A. CURTIS