ATJ Family Law Task Force Report, August 2000

REVISED
FINAL DRAFT
August 25, 2000

The Washington State Access to Justice Board in a meeting held on March 26, 1999, concluded that there were "issues around family law presenting enormous problems for judges, providers and pro ses." This conclusion followed a meeting of the Board with the justices of the State Supreme Court involving a lengthy discussion. It resulted in an agreement to appoint a task force to address access to justice issues in the family law area. An ad hoc committee was appointed to further define the mission of this task force.

LIMITED STATISTICAL BACKGROUND

For purposes herein statistically, family law cases are defined as those cases involving dissolution of marriage, modifications, child custody and support issues, paternity, third party custody matters and related cases including adoptions. (For purposes of the mission of the task force, adoptions as such were not included but the statistical information kept by the Office of the Administrator of the Courts, groups adoptions and paternity together.) Juvenile court proceedings, including dependencies and terminations, are not included in this report.

Family law cases comprise about 20% of all cases brought in Superior Court statewide (approximately 51,000 cases in 1998). It appears that these cases use far more than 20% of the state's judicial resources. Family law cases have a significantly higher number of persons who self represent than do other types of cases. This impacts the system and presents unique issues for these types of matters. Verifiable up-to-date figures do not exist on the percentage of these cases handled on a pro se basis. National statistics appear to be valid for this state. Those indicate that in about 60% of all such cases, no lawyer appears and in an additional 20%, a lawyer appears at some though not necessarily all significant stages for only one side. (See Time Magazine, "Who Needs Lawyers", page 62, June 12, 2000.) In addition, these statistics are skewed in favor of representation, since file statistics generally reflect if no lawyer has ever appeared. Many times lawyers appear only for a limited time and a limited purpose with the parties unrepresented at critical times. The statistics may not reflect actual representation levels in modifications of child support matters. If parties were represented at the original trial it will appear that they are represented in the modification action because modifications are initiated under the original case number. However, the parties are more likely to be unrepresented in modifications than in the original trial. These cases many times are more vigorously litigated than the original matter.

While it is uncertain as to precisely why litigants in family law cases choose not to have counsel, statistics support the fact that many people, even of moderate means, believe they cannot afford an attorney. Indeed, those involved in family law know that most people in dissolution matters cannot afford to support one household on their income, let alone two. It is no surprise they conclude they cannot afford one lawyer in addition to their other needs, let alone two.

Moreover, lawyers for low-income persons are extremely limited in number. Family law litigants face the following resource challenges:

• While there is approximately one lawyer for every 250 persons in this state, there is only one legal services field lawyer for each 13,000 poor persons.

• Pro bono services, while extremely important and provided by dedicated private attorneys, cannot fill the need to low and moderate income persons in this area.

• The CLEAR hotline operated by the Northwest Justice Project receives about two thirds of all of its calls in the family law area.

• The web site provided by the legal service providers in this state for each month, beginning in July 1999, exceeded 100,000 informational reviews consisting of down-loads of information or significant review (not simply hits), the majority being in the area of family law.

• In 1999, typical of the other offices around the state, the courthouse facilitator in Spokane County had more than 4400 personal interviews and more than 3000 telephone calls from persons seeking information on self representation. Given the fact that facilitators in this state are prohibited from giving legal advice, but may provide limited information only, these figures are significant when extrapolated to a statewide basis.

MISSION OF THE TASK FORCE

The Access to Justice Ad Hoc committee defined the mission of the task force as follows:

The current systems for providing family law legal services, assistance and information in Washington State are inadequate to ensure meaningful access to the justice system for many low and moderate-income clients and those proceeding pro se.

The Access to Justice Board has appointed a Family Law Access to Justice Task Force to recommend improvements in the availability and delivery of family law legal services, assistance and information in Washington State for low and moderate-income people as well as pro se litigants.

To accomplish this mission, the Task Force will:

1. Study readily available information regarding barriers to the availability and delivery of family law legal services, assistance and information. The Task Force may seek additional information as necessary.

2. Identify the issues, problems and barriers that impede the availability and delivery of family law legal services, assistance and information.

3. Issue a report that sets forth and prioritizes short and long-term recommendations.

MEMBERS OF THE TASK FORCE

The Board appointed Alden Garrett, a member of the WSBA Family Law section and WSBA Family Law Section Board as co-chair with the Hon. Paul Bastine, a member of the Access to Justice Board. The task force members were:

Hon. Nancy Bradburn-Johnson, King County Superior Court Commissioner

Patrick E. Connelly, Columbia Legal Services attorney

Maryann Crissey, Vice-President of US Bank

Caroline D. Davis, Staff attorney for King County Superior Court Family Law CASA Program and private practitioner

Mary Hardy, paralegal for Foster Pepper

Jenny Heard, Executive Director for Snohomish County Legal Services

Mark Iverson, private attorney guardian ad litem

Howard Marshack, member of Washington State Bar Association FLEC

Janet Skreen, former Kitsap County Courthouse Facilitator

Gail Stone, WSBA Legislative Office and liaison from the Domestic Relations Commission.

THE PROCESS OF THE TASK FORCE

The Task Force met in person three times as indicated in the minutes attached: March 11, May 6, and June 3, 2000 and by telephone conference on August 8, 2000.

The list of materials the task force reviewed in meeting its first obligation under the mission statement is attached. No concerted effort was made to obtain significant information from other outside sources nor to solicit comments up to this point. Both the timeline and resources prevented this and the mission statement indicated that the task force was primarily to study readily available information.

Consensus was reached early in discussions that family law cases are complex, offer a variety of challenges for all concerned and to treat them all the same, as we tend to do, is a mistake. Thus it was decided early in the work of the task force that it would be necessary to evaluate various kinds of family law cases with that caveat in mind. In addition it should be noted that the task force recognized that cases are treated differently in the various counties and even possibly from one judicial officer to another. Resources also vary significantly from location to location, sometimes even within the same county.

Considerable discussion took place as to how to approach this seemingly overwhelming task. It was agreed that not only do the above-cited complexities apply, no two families are alike. The dynamics in each case are in constant change during the course of the proceedings. Also the type of family law proceeding impacted our mission. Thus a decision was made to analyze barriers and make recommendations based upon the type of family law judicial proceeding. We divided into small work groups using that approach. The groups, which completed this task, analyzed proceedings with a view to barriers and possible recommendations in the following:

• dissolutions with children

• child support modifications and adjustments

• enforcement of parenting plans and maintenance obligations

• third party custody matters

• domestic violence protection orders

• third party visitation cases

• parentage (paternity) cases.

The task assigned to each work group was to determine the various legal steps in each of such proceedings, list barriers that exist in each step as perceived in the group's experience and observations and then list possible recommendations.

A caveat: Neither a listing of types of proceedings nor of the individual steps in each category of proceedings was intended to be all-inclusive. The same is true of the listing of barriers and recommendations. There are undoubtedly many barriers that could be added to those identified by the members of the task force. The summaries of the work groups are attached as references to this report.

The primary goal of the task force has been to identify barriers. It should be no surprise that there was little disagreement that with sufficient legal resources, the barriers could be minimized. The task force has not included a recommendation for additional resources to fund legal services, since the members concurred that the assignment implicitly recognizes there are insufficient funds. However, it was the unanimous conclusion that additional funding for legal services should be and should remain the highest priority for those interested in access issues. To substitute appropriate legal representation by qualified lawyers for anything less is just that: something less. Thus the recommendations operate on the assumption that in the immediate future, there will be limited legal representation available for those of low and moderate incomes.

The task force recognizes and applauds the significant resources available and the extraordinary efforts of those who provide those resources. The task force also recognized the limitations on the scope and availability of these resources around the state, and factored these considerations into its recommendations. The currently available services and processes listed by the task force include but are not limited to the following:

• courthouse facilitators

• internet access and assistance

• law libraries

• advice clinics

• CLEAR

• pro bono assistance

• legal services offices

• domestic violence advocates

• pro se dockets

• unbundled legal services

• fixed and limited legal fees by private attorneys

• forms at little or no cost

• county pay CASA's and GALs

• filing fee waivers

• unified family courts

• CPS and other state services primarily for children

• assistance in some cases by prosecuting attorneys

• other specialized services in various counties such as the family court services in King County.

Since the need for assistance far exceeds the finite resources, an effort has been made to provide other recommendations or to consider marshaling the limited resources in such a fashion as to maximize the benefits.

RECOMMENDATIONS

A review of the reports of prior commissions, task forces and work groups of this task force, shows that despite the complexities and variety of matters, some recommendations are present in virtually all types of proceedings and many categories within those proceedings. The general recommendations can be summarized as follows:

• early court intervention and management

• increased access to and protocols for involving professional assistance from non-legal providers such as courthouse facilitators, guardians ad litem, and social service workers

• increased access to legal advice through lawyers and non-lawyers

• information and education for parties which is more readily available and which is more understandable by non-lawyers and those with personal limitations

• simplified procedures

• revised forms

• increased use and availability of ADR processes.

There appeared to be no dispute with the conclusion of Dr. Diane Lye that continued conflict adversely affects children. That brought a general conclusion that the adversarial process is negative for children, particularly when extreme and extended. Acceptance of that premise likely influenced the general consensus that cases involving children have the need for early and appropriate intervention and appropriate disposition with limited involvement in the adversarial process.

Again the task force feels compelled to recommend increased funding for legal services for family law matters. There is truly no substitute for appropriate legal representation in such matters and many of the recommendations that follow would be unnecessary or limited by sufficient funding of legal representation for those of low and moderate incomes.

SPECIFIC RECOMMENDATIONS OF THE ATJ TASK FORCE ON FAMILY LAW

1. There should be early court intervention and management.

   This should involve a triage approach with an early determination of how the judicial system should or should not handle the matter. This should involve an immediate determination by a judicial officer whether professional services should be involved such as a domestic violence advocate, a guardian ad litem for children and other social service needs especially if there are indications of abuse or neglect, referral to ADR processes, referral to the courthouse facilitator, do-it-yourself clinic or other services. While the recommendation is that all family law cases should be subject early management and appropriate intervention, cases involving children should receive a high priority as they do statutorily.

   Protocols for handling the various issues and proceedings should be developed to aid the various parties, assure appropriate handling of particular matters and provide a consistent approach. At the same time the judicial officer should determine the appropriate judicial procedures to invoke such as mediation, arbitration, immediate trial or determination of children's issues as well as scheduling orders with assignment to a single judicial officer for follow up and processing. At least six states have adopted some form of this proposal, those being Arizona, Massachusetts, Maryland, Idaho, Indiana and Florida. The task force did not obtain information on the current status and success of these programs. It was determined that should be done by a subsequent body which should also determine funding needs.

2. There should be resource centers available to assist in accomplishing the objectives in the first recommendation.

   These centers should be staffed by lawyer or non-lawyer facilitators, paralegals, volunteer lawyers, domestic violence advocates and other professionals with access to computers, instructions and appropriate information. Appropriate resource information should be available with the ability to make referrals to the best available resource whether it is a private attorney, a legal service office, a clinic, ADR services or whatever. Such resource centers should provide access to appropriate assistance for those who have special limitations, be they literacy issues, language barriers or other physical or mental issues. Since the legal culture, resources and consumer acceptance will vary from county to county, the configuration of such resource centers patterned after Maricopa County, Arizona, should be locally determined based upon some minimum standards adopted by the appropriate organizations.

3. Courthouse Facilitator programs should be established in all counties and/or judicial districts and the scope of facilitator services should be expanded.

Courthouse facilitator programs should be expanded in two ways. First, each judicial district should have a facilitator program. Second, facilitator program services should be broadened to encompass three discrete areas of assistance: public legal education, case management, and pro se assistance, in part as outlined in the first two recommendations above.

• Public legal education: facilitator programs should be responsible for producing and maintaining informational brochures and pro se instruction kits as well as for staffing the resource centers recommended above.

• Case management: facilitator programs, in conjunction with judicial officers, court administrators and county clerks, should screen all family law cases for procedural compliance at specified intervals; facilitators should preview all pro se cases prior to final dissolution hearings and other specified motion calendars; facilitators should refer high conflict and complex cases to a special master or unified family court.

• Pro se assistance: facilitators should provide assistance to pro se litigants in the facilitator's office and in the courtroom. Facilitators should provide assistance in the completion of forms and assist parties with the preparation of orders following court hearings.

By providing meaningful assistance to pro se litigants and to the courts, facilitators help to maximize judicial resources. A prepared litigant can more effectively navigate the judicial system, keeping our limited resources viable and more available to all users of the system. By proactively monitoring cases for procedural compliance, facilitators can help ensure that sufficient judicial and administrative resources remain available for high conflict and complex cases regardless of the parties' representation status.

The consensus of this task force was that the most efficient way to deliver the expanded facilitator services outlined above is through the use of attorney facilitators. However, the task force pragmatically realized that funding limitations in many, if not most, counties would make such staffing of facilitator programs impossible. Therefore, the task force recommends that at a minimum each county and/or judicial district have an attorney available as a resource to the facilitator program.

4. It is the recommendation of this task force that the issue of licensing of family law limited practice officers should be evaluated and resolved in conjunction with the issue of defining the practice of law.

It should be of concern that the perception of the public as to the use of non-lawyers for limited or quasi legal assistance may be more important than the reality of significantly reduced costs of legal services. Recommendations 1 through 3 above are in part a response to the identified need for increased access to legal advice. The task force concluded, however, that the legal community should go further to address this unmet need. To that end, the task force discussed the issue of limited practice officers in family law and looked particularly to California's experience. California has not yet developed data on the effect of its licensure of paralegals.

This task force was also aware that this issue relates to the effort to define the practice of law underway by the WSBA. WSBA's Committee to Define the Practice of Law, recognizing as well that the legal community must go further to satisfy this unmet need, has proposed draft criteria for establishing the regulated nonlawyer practice of law. The criteria stems from a premise, adopted by that committee: "All members of society should be able to obtain essential legal assistance from individuals who have the requisite skills and competencies and who are subject to a regulatory system that seeks to ensure that those whose important rights are at stake can reasonably rely on the quality, skill and ability of those who provide legal assistance." While the task force does not recommend a particular outcome, it does recommend that the issue be taken up and resolved in conjunction with WSBA's efforts.

This matter also has been considered by at least two prior task forces of the WSBA (Report of the Domestic Relations Task Force, February 1991 and Report of the Task Force on Nonlawyer Practice of Law, September 29, 1995) and an extended study by the ABA (Nonlawyer Activity in Law-Related Situations, June 1995). (It is appropriate to note that the 1991 Task Force determined that limited practice officers in family law was not a recommendation of that group, in part, because the limitation on their mission was only to indigent concerns and did not involve access barriers for moderate to low income individuals.)

It seems clear that unless the legal profession including both the courts and the members of the legal community take some action, the consuming public will demand and find a way to obtain services they deem appropriate. This conclusion is based upon the experience in other states such as California, the need to license real estate closers in this state and the increased intrusion of non-lawyers in other areas such as estate and financial planning. Some members of the task force in this instance had concern, as did the majority of members of the Domestic Relations Task Force of February 1991, that limited licensure would not assist the indigent public nor significantly assist the more moderate income public in the access aspect, and thus could reach no consensus on this point.

5. The mandatory pattern forms should be substantially revised for improved understandability, clarity and ease of adaptability.

The issue of revised forms arose consistently. It seems that the forms are both too complex and too simple. They are too complex in that they use complicated legal terms, which should be simplified. As an example, even lawyers get confused when the respondent brings a motion and thus becomes the petitioner for purposes of the motion. Characterizing parties with more meaningful labels, such as "husband/former husband" or "husband/father" or "father" consistently in the forms would make identification of the parties easier to follow throughout the course of litigation. Each form should have an explanation sheet similar to the manner used in used in Thurston County's self-help center. These are only two examples of how the mandatory forms could be simplified.

They are also too simple and do not allow for easy adaptation to needs in individual cases. For example, the forms suggest parenting arrangements that are not consistent with the developmental needs of children. Every other weekend contact for an infant would arguably be detrimental to the child. There should be suggested language addressing appropriate residential provisions for children at different ages such as is provided in the recommended Child-Centered Residential Schedules for Spokane County.

Some of the mandatory forms even have provisions that are not the law such as the provision for an accounting for child support payments. The mandatory forms need immediate revision, particularly as indicated in the Parenting Act Study by Dr. Lye. See the recommendations enumerated in the Review of the 1999 Parenting Act Study, Washington State Bar News, July 2000 by Diane N. Lye, Ph.D. and Mary Wechsler. New technological development of interactive forms and similar steps particularly if available in resource centers as proposed in Recommendation # 2 above may impact this recommendation.

Some of this can be accomplished by enacting the first three recommendations. In addition, the use of unified family courts can help accomplish this objective. Clarification and appropriate rules allowing the unbundling of legal services would be a simple step to assist in this recommendation as currently being studied by the ATJ Unbundled Legal Services Committee. As indicated in the reports of the work groups, there are a number of specific areas where procedures could readily be addressed to assist access. The current study of the courts in Project 2001 could incorporate some or all of the suggestions in this recommendation. Of course, that project could consider the first three recommendations and adopt them as well. However, given the timeframe that project is operating under, that is unlikely.

The above recommendations are prioritized only in so far as the impact of the recommendation appears to be more significant in addressing the various barriers and having a more positive end result as to access issues. Since some of the recommendations are already being addressed in some form and since some are incrementally easier to accomplish than others are, no attempt has been made to set these out as long or short term. It should be assumed that all are hopefully to be addressed in the short term but obviously some will take a longer period to accomplish. In fact, all of the recommendations are likely dynamic in a way that constant evaluation and re-evaluation should be a part of the development and adoption of each.

CONCLUSION

The Domestic Relations Task Force in 1991 began its report as follows:

The Task Force found a ready consensus among its members and among knowledgeable observers generally that there are substantial deficiencies in the administration of justice in family-law matters in the State of Washington. Objections to the structure of the present system fall into two categories:

1. General objections: that the system as a whole is too expensive; that it relies too much on an adversarial model; and that matters affecting troubled families are unduly fragmented in the justice system.

2. Particular concern for indigents: that parties with limited resources are unable to obtain the legal representation and other assistance they require, especially in contested cases; and that by proceeding pro se they impose enormous burdens on the system, fail to obtain the protection they need and deserve, and sow the seeds of problems that will have to be addressed later by the courts and other governmental systems.

We have made gains in some respects since 1991, that is: we now have courthouse facilitators in most counties in the state and we have mandatory forms that have provided some assistance in addressing the above objections, and there have been other changes in individual jurisdictions as well. Unfortunately, we have lost ground in other areas, such as significant reductions in funding for legal service programs.

Overall the concerns expressed in 1991 remain nearly a decade later and only a limited number of recommendations have actually been adopted. As indicated, there are a number of groups working on similar projects or projects in which these recommendations could be addressed. On the other hand, some of these recommendations are complex and warrant separate work groups to assume the task of further analysis and implementation. This task force has not attempted to determine the willingness of any group to undertake the implementation of these recommendations. It was felt appropriate to leave that determination to the Access to Justice Board as to how best to proceed. It is the hope of this task force that the Access to Justice Board will receive the above recommendations and take steps to serve as a catalyst for stakeholders and decision-makers to reach consensus and enact solutions.

ATTACHMENTS

List of members with addresses, etc.

Mission statement from ATJ Board

Letter to Task Force members

Minutes of meetings

Limited materials provided such as memoranda not otherwise available

Categorical barriers and recommendations from the work groups

The following list of materials were received for review by the task force:

Report of the Domestic Relations Task Force to the Board of Governors of the WSBA (February 1991).

Hallmarks of an Effective Statewide Civil Legal Services Delivery System (August 1995).

Revised State Plan for the Delivery of Civil Legal Services to Low Income People in Washington State (September 1999).

Access to Justice Board Survey of Problems and Solutions for Low-Income People in Washington State (September 1999).

Reinventing the Republic, A Proposal for Public Legal Education (July 1999).

Washington State Parenting Act Study, A Report to the Washington State Gender and Justice Commission and Domestic Relations Commission (June 1999) by Diane N. Lye, Ph.D.

Summary of Recommendations for Court Improvement from Selected Reports as prepared under the direction of Yvonne Pettus, Office of the Administrator of the Courts.

Collaborative Mediation: An Alternative Approach to Case Management in Family Law Cases by Don P. Desonier and Andrew D. Kidde, WSBA Bar News (March 2000).

Nonlawyer Activity in Law-Related Situations, ABA Commission on Nonlawyer Practice (June 1995).

Child Centered Residential Schedules, Spokane County, Mark Iverson, JD, Project Coordinator.

Barrier to Effective Delivery of Legal Services by Janet Skreen, Courthouse Facilitator, (March 11, 2000).

Report to Board of Governors of the WSBA from the Task

Force on Nonlawyer Practice of Law, including the minority report by Howard Marshack (September 29, 1995).

Memorandum from Ruth Laura Edlund (Former Director of Mentor Program-KCBA) (May 6, 2000).

Memoranda from Howard Marshack (March 7, 2000 and May 6, 2000).

Memorandum re: The Adversarial System Is a Barrier in Child Custody Matters from Paul Bastine (April 23, 2000).

The Silent Victims of Domestic Violence: Children Forgotten by the Judicial System by Janice A. Drye, 34GONZAGA LAW REVIEW 229 (1998-9).

Summary of Recommendations of the Massachusetts Probate and Family Law Court Department Pro Se Report.

Six Month Report of the Access to Justice Board (January 31, 2000).

Access to Justice Board draft exception to unauthorized practice of law rule as relates to courthouse facilitators.

How the Public Views the Court, a survey for the Office of the Administrator of the Courts (1999).

Report on Unified Family Court by Domestic Relations Committee a subcommittee to Project 2001 (2000).

Materials re: Unified Family Court for King County.