Is California Family Law better today than it was 30 years ago?

I struggled a bit writing this.

I thought it would be easier finding examples proving that California family law is better now than it was 30 years ago.  Truth is, I’m not sure there have been many improvements since I began practicing in the 1990s.

Yet, despite the similarities to 30 years ago, it is undeniable that family law has witnessed some improvements. Here are five examples that stand out in my mind:

More assistance available for people self-representing: Almost every county in the state has a Family Law Facilitator—a free lawyer (paid for and provided by the county) who can help self-representors fill out the necessary forms to file for or respond to a divorce, custody, support, or domestic violence matter.

  • Corollary – As you can imagine the Facilitator is usually in great demand, so it is advisable to call the county court clerk and make an appointment early in the process. The only downside to the Facilitator is that they cannot come to court with you. 

Judges are more likely to follow custody law – California custody law says both parents are to be considered equal when deciding who should have physical and legal custody of the children. Although California law has long stated this, the reality is that over the past 30 years spouses were much more likely to face a Judge who followed the “tender years” doctrine, which professes that young children should spend more time with Mom than with Dad. Today you are less likely to encounter a Judge who espouses this doctrine or who believes that fathers cannot parent young children. This does not mean that the equal presumption of custody is being perfectly applied; still, it is better than it was years ago. For example, although in most counties standard custody orders presume that young kids will spend more time with Mom, today those “standard orders” are easier to beat. 

Domestic violence is more recognized as a problem for the entire family – The laws written over the past 30 years and the Judges who apply those laws recognize that it is not just the direct victim who is impacted by domestic violence in the home. The children are impacted as well. This viewpoint was not the norm 30 years ago. Today, if a spouse proves his/her ex is violent and obtains a domestic violence restraining order against them from the Judge, when the time comes to decide on the custody of the children, the law says the Judge may assume that the non-violent parent is a better custody choice than the violent parent—even if neither parent was abusive towards the children. 

Children are being “heard” more in custody cases – More and more counties are discovering ways for children’s voices to be heard in custody cases. Some counties make use of Minors Counsel (lawyers paid by the county if the parents cannot afford to pay them) to represent the children. This lawyer represents the kids solely and does not support one parent over the other. They find out what the kids want and what the kids should have in terms of custody and visitation, and then they present it to the Judge. Recommending Mediation is another method some counties are using. In this program parents and children visit a neutral third party—the mediator—who then recommends to the Judge what custody arrangement is in the best interest of those children.

Certified Family Law Specialist Programs – The California State Bar Association (the group that licenses and regulates all lawyers) has developed a Certified Family Law Specialist Program. Lawyers who have CFLS after their name have passed a very comprehensive test covering all aspects of family law, and they have shown a great deal of experience in taking these matters to trial and to appeal if necessary. While many very good lawyers do not have this accreditation, a CFLS moniker after an attorney’s name assures you that the attorney is well-versed in family law.

Indeed, some progress has been made in family law over the past 30 years that the California judicial system can be proud of. However, there is still much work to be done. For ex., family law cases (unless they involve custody or domestic violence) still go to the bottom of the Judge’s trial calendar behind criminal cases and all other civil matters. This means it might take months, or sometimes even years, for a case to go to trial in front of a Judge. It was unacceptable 30 years ago and is no less so today, so let’s not pat ourselves on the back too quickly about our progress.