The Emperor Has No Clothes (in family law)

In the story "The Emperor's New Clothes", a child blurts out the truth that the emperor is naked. In that story it was the innocence of a child speaking. More often though, truth comes from the eyes of wisdom and experience. The recent series of articles in the Daily Journal by Mark Minyard, an attorney member of the Elkins Commission, point out that the Emperor is naked, and that our family law system in this state is broken and has been broken for years.

I served as the Supervising Judge of the Family Law Departments in Orange County from 2004-2009. I often met with the bar, had town hall meetings, and spoke informally with the parties we served, (Our eyes look outwards. The only way to know how we are seen is by seeing through the eyes of others). I often heard complaints that our justice system in family law was too costly, too delayed, too inefficient, too painful. I had brainstorming sessions with courthouse clerks and met with family law supervising judges from other counties (Los Angeles, San Diego, Riverside, San Bernardino) to try to bring about improvements. We made some improvements but the major changes needed in our system were beyond our reach. We put great hopes on the Elkins Commission and the Recommendations of the Elkins Commission Report, but then the financial crisis hit and what seemed like a wave of change in family law became a great stillness. In spite of the hard work of judicial officers and staff in our family law departments, our system remains broken.

Many nations of the world would love to have what we have; a non-corrupt system with procedures that foster a fair hearing. But that is not good enough for the richest state in a first world country. The problem that remains with us is that we process our cases at whatever speed our procedures, budget and staffing allow and not according to the needs of the parties.

Here is what would give us greater quality of justice in family law:

1. We need an allocation of more judicial officers to family law departments. We also need the Governor's Office to give some priority to appointing family law practitioners to the bench instead of giving dominant priority to jury trial experience; family law work is more difficult and requires a rare skill-set substantially beyond picking a jury! We need to be able to reach a level of family law staffing so that if a judge starts a dissolution trial, he or she is able to finish it before starting another trial, and no longer leave the earlier trial unfinished to be completed in a series of afternoons over a period of weeks or months. This undesirable practice is standard in family law and unthinkable in criminal and civil departments. Justice delayed is justice denied. Justice delayed and fractured is justice doubly denied.

2. We need an embedded awareness that a divorce carries with it enormous emotional pain for parents and children and that delay substantially increases their emotional pain and impairs their ability to heal and make financial decisions. Parties need to be set free from each other and move on with their lives, financially and emotionally, as soon as possible; certainly within a year should be the goal, doing away with multi-year divorces. We need new case-appropriate buckets of procedures that resolve the simple contested cases promptly, that encourage collaborative (rather than adversarial) divorce where possible and that resolve complex matters without the court being the cause of delay.

3. We need Court Self-Represented Centers that help self-represented parties in the simple cases to promptly, and in one or two visits to the courthouse, take their case to a judgment. Instead, we have processes that require multiple court visits until a party has to make a choice. Do I abandon my pending divorce action (and remain unable to remarry, or perhaps remarry anyway without completing my divorce), or do I keep coming to the courthouse half a dozen times and get fired from my job because of multiple absences?

Emily Dickinson wrote the poem: Tell all the truth but tell it slant:

"Tell all the truth but tell it slant --

Success in Circuit lies

Too bright for our infirm Delight

The Truth's superb surprise

As Lightning to the Children eased

With explanation kind

The Truth must dazzle gradually

Or every man be blind --"

Dickinson believed that it is best to tell the truth gradually because the full truth can be too shocking to be received. Mark Minyard's series of articles may have upset some readers. He could have told the truth slant by saying that our justice system in family law needed improvement. Instead, he told the truth directly and bluntly and said "it is broken". A system of justice that adds years to the emotional injury of divorce litigation, where justice is delayed and fractured, where the cost of litigation is often more than the amount at issue, is a system that is broken. I pray that there is action at the highest levels as a result of Minyard's articles and that we don't remain blind and still and in collective denial of a broken system of justice in family law.

-Judge Francisco Firmat (Ret.)

Judge Firmat was the recipient of the 2008 Benjamin Aranda Access to Justice Award for his work enhancing access to justice in Orange County. The Aranda Award is given jointly by the State Bar of California, the Judicial Council of California and the California Judges Association. Firmat is presently a private judge with ADR Services, Inc.