MANDATORY CONCILIATION CUSTODY /VISITATION MATTERS: California's Bold Stroke.

Hugh Mclsaac"

On March 27, 1980, Governor Edmund G. Brown, Jr. signed into law, S.B. 96 1 by Senator Alan Sieroty. This legislation reformed Califor- nia's Family Conciliation Courts and made medi- ation mandatory in all contested custody and visitation matters before a party has any entitle- ment to a court hearing. In addition, this law enabled conciliation courts to be self-supporting through permitted increases in the divorce filing and marriage license fees. This article describes some of the history of the legislation and a sum- mary of the bill.

Dramatic increases in the divorce rate in California from an average of 3 .6 divorces per thousand population in 1 9 5 3 to over 6 . 2 divorces per thousand in 1 9 7 8 underscored the need for conciliation and the need to resolve custody and visitation disputes (6). Authors such as Roman, Elkin, Weiss and Ricci (3, 4, 1 7 & 13) among others, began to document the effects of divorce and the need for new insti- tutional means of handling the reorganization of the family transitting the experience of divorce. The realization that divorce was in the spousal role, and not necessarily in the parental role, led to the recognition of the need for a forum permitting both parents to be involved in the continuing care and control of their chil- dren, even though they were no longer living together as husband and wife. The need for this forum was further underscored by the passage of California's joint custody statute. Further- more, the inadequacy of the adversarial system in resolving th is confl ict only became more apparent as families, the consumers of service, and the courts themselves began to advocate change(1, 2, 5, 7, 8, 9, 15).

In 1 9 7 3 in Los Angeles, and almost simul- taneously in Hennepin County i n Minnesota, and Santa Clara County in California, and Dane County Wisconsin, the judiciary began experi- menting with the referral of highly contested custody and visitation matters to Conciliation

*Hugh Mclsaac, M.S.W., is Director of Family Counseling Services, Los Angeles Conciliation Court, Superior Court, Los Angeles County, California.

Court, in order for the parents to work out their own agreements (1 1 , 1 7). Referrals were made in those cases where the litigants were using the Court as a means of getting back at each other and were raising "pseudo-legal" issues, often motivated more by need for revenge, than out of a true concern about the custodial arrangements. The conciliation courts were suc- cessful in resolving these disputes. In 1 9 7 6 in Los Angeles, and in San Francisco, the courts began referring all contested custody and visita- tion matters to the Conciliation Court prior to trial. This policy was implemented by Judge Donald B. King i n San Francisco and Judge Christian E. Markey in Los Angeles (9). At about the same time other counties in California, in- cluding Sacramento, San Diego, and Fresno, began referring all contested cases to the Concil- iation Court prior to trial. Conciliation courts were successful in approximately 55 to 8 5 % in resolving these conflicts without going to trial. The success of these programs in the large urban areas was one of the major bases for the development of the Sieroty Bill, S.B. 961.

Prior to the passage of S.B. 961, in 1 9 7 5 the Chel Bill (A.B. 3627) was passed permitting an increase in the divorce filing fee of $5 .00 and an increase in the marriage license fee of $2.00 and $2.00 for the marriage certificate, provided that the County match from other funds. This bill was passed as a result of a reve- nue short fall in Los Angeles County which had led to almost phasing out the conciliation pro- gram and a 50% reduction in staff. With the advent of escalating home values, and conse- quent rapid increase in local property taxes, ex- treme pressure was being placed on local juris- dictions to find additional means of support, or to cut services. Los Angeles Conciliation Court was cut in half during this period. While the Chel Bill met the immediate problem of funding the Conciliation Court on a temporary basis, the program was still in jeopardy, because it did not make the service mandatory and still required County funds (10). In 1 9 7 7 a bill was spon- sored by Senator Dunlap (S.S. 427), which

7 3 CONCILIATION COURTS REVlEW/VOLUME 19. NUMBER 2/DECFMRFR l Q R 1

would have provided sufficient revenue for all California courts, but because of the opposition of the California Rural Legal Assistance and other legal aids throughout the state, the bill was limited only to Napa and Shasta Counties which permitted an increase of $45.00 in the divorce fi l ing fee in those jurisdictions. The Legal Aid Foundation objected to the legislation because they felt it was regressive, and because of the lack of uniform application of the in forma pauperis provisions worked against clients re- presented by legal aid.

In 1978 a commission was appointed by the state legislature to study the effects of Cali- fornia's no-fault divorce law and to make recom- mendations for legislation should the need be perceived. The Family Law Advisory Committee, under the direction of Judge Robert Fainer and including Judge Billy G. Mills, Los Angeles County Superior Court, was convened. Steven Belzer was appointed its counsel. A number of very substantial changes were recommended by the Family Law Advisory Committee, among which was a complete revision of the Concilia- tion Court law, (Code of Civil Procedure, sec- tion 1730 through 1772). The initial recommen- dations of the Advisory Committee was to re- quire mandatory counseling for all families going through the process of divorce. This was not the first time that this recommendation has been made. The objections to the mandatory counseling provisions were made by concilia- tion courts themselves, out of the recognition that this would require an enormous increase in staff, and for the most part, in other jurisdic- tions where conciliation had been made manda- tory, resulted in merely a bureaucratic, prefunc- tory process. A very low percentage of couples reconciled contravening the original goal of the legislation which was authored as a pallative to those opposed to the passage of no-fault di- vorce. The California Chapter of the Association of Family and Conciliation Courts met to review the recommendations of the Family Law Advi- sory Committee. After a thorough study, the Chapter recommended that mandatory media- tion, or conciliation, of contested custody and visitation matters be extended to all counties throughout the state, since this process had proved effective in those counties where these provisions were mandatory. The Association of Family and Conciliation Courts, California

Chapter, also recognized this service would be the most logical to make mandatory and easiest to obtain through legislation.

A thorough study of the existing concilia- tion courts was made by the staff of the Senate Subcommittee on Administration of Justice and a report issued by Steven Belzer. This report became the basis for the introduction of S.B. 961 which was introduced first as an emer- gency legislation in 1978, just prior to the pas- sage of Proposition 13. S.B. 961 by Senator Sieroty was amended to incorporate the sugges- tions made by the Senate Subcommittee report, which changed the name to the Family Concilia- tion Court Act, enlarged the powers of the Con- ciliation Court to incorporate the possibility of both evaluation and mediation services and made mediation mandatory in all contested cus- tody and visitation matters.

Originally the legislation separated the eval- uation and mediation function, not permitting the mediator to make a recommendation to the Court when the mediation efforts did not result in an agreement of the parties. This clause was changed to permit the introduction of recom- mendations "according to local rule". Because of the objections of those counties who were already combining the two functions, this com- promise was reached to obtain support of all counties within California. Presently Los An- geles and Santa Clara counties do not make rec- ommendations to the trial court.

In addition, the legislation permitted an in- crease in the divorce filing fee of $15.00, and marriage license fee of $5.00, and an assessing of a $15.00 fee for any motion to modify or enforce a custody and visitation order, all of which were earrnarked for support of the Concil- iation Court with the County required to provide all indirect, overhead costs from separate funds, The legislation also permitted contracting be- tween smaller counties to set up a service when the number of contested cases would not justify a full-time counselor.

Obtaining passage of the Sieroty Bill was significantly assisted by Steven Belzer, counsel to the Subcommittee on Administration of Jus- tice. Belzer WBS able to work out an under- standing with the L g a l Aid faction which would have incorporated language in S.B. 961 that would have liberalized the in forma pauperis statute and enable the Judicial Council to es-

74

tablish statewide, uniform guidelines. This sec- tion of S.B. 961 became unnecessary when Legal Aid was able to obtain passage of their own legislation which achieved this objective. This compromise was important because it re- moved the major opposition to S.B. 961 and illustrates the principle in obtaining the passage of legislation, i.e. work with your opposition to determine what changes might satisfy them, or what legislation you could support in return for their support of yours.

The bill was passed very quickly by the Senate Judiciary Committee. However, the chairman of the Assembly Judiciary Committee was concerned about the legislation and held the bill in committee through the summer of 1979, making it a two-year bill. In January 1980, the bill was up for reconsideration, the understanding was that because of the objection of the chairman of the Assembly Judiciary Com- mittee, it was not going to be reported out, and a full-scale effort was mounted in order to show widespread support of the bill. Letters from United Way and fami ly service agencies, Parents Without Partners groups, the Father's Rights groups, the League of Women Voters were obtained, Statewide endorsements were obtained from the PTA and various legal aid foundations. According to a consultant for the Assembly Judiciary Committee, S.B. 961 re- ceived more letters of support than any other piece of legislation handled by that committee that year. However, the vital factor in obtaining the reporting of the bill out of the committee may have been the rumor that the Governor was planning to veto the legislation on the basis that the legislation might be viewed as an increase in taxes. The chairman may have felt, "Let Gov- ernor Brown take the heat".

A delegation of judges from northern and southern California, Judge Billy G. Mills and Judge Donald B. King, two directors of concilia- tion courts, including this author, a consumer of the service, and Steven Belzer, who joined the delegation even though he was currently on another assignment, but because of his belief in this legislation wanted to work toward obtain- ing this passage, met with Alan Sumner, Assis- tant Legal Affairs Secretary to Governor Brown's staff responsible for making recommendations concerning legislation and legal affairs. The ini- t ia l position of the Governor's staff was that

while the Governor supported the concept of mediation and alternative methods of dispute resolution, the increase in filing fees would not be acceptable because the Governor felt that since Legal Aid had abandoned its role in pro- tecting the poor, the Governor's role was to as- sume this responsibility. The most persuasive argument for the legislation was mounted by the consumer of the service, who pointed out that this legal battle for custody had cost him and his former wife $38,000 in attorney's fees, and he had been scheduled for a trial which would have cost an additional $8,000 in attorney's fees, plus the cost of $5,000 in trial costs. He also pointed out that this matter had been re- solved in the conciliation Court in a period of 9 to 10 hours, at no cost to himself, and a mini- mal cost to the County of Los Angeles; he felt "A $15.00 fee increase in a divorce filing fee and $5.00 more to get married, were minimal costs compared to the potential risk that his ex- perience demonstrated would confront couples if this service did not exist. This argument was persuasive; at the end of the conference the rep- resentative of the Governor's office said that he, . . . "did not think that he should recommend a veto of this legislation". On March 27, 1980, the bill was signed, ending a three-year strug- gle.

Important principles demonstrated in ob- taining the legislation were (1) Develop a large broad-based coalition of support beginning with the court, (2) Work with the opposition in order to meet their concerns, or find alternative solu- tions for helping them with legislation that would be in their interest, i.e. assume no one is an opponent until proven otherwise. (3) Do not waste efforts, but concentrate on the legisla- tive task at hand to contact with the legislators involved in the committee currently considering the bill. (4) Concentrate your forces at the point of attack. Contact and educate the legislators before any major vote, and do not take anything for granted. (5) Remember, always dealing in the political arena is best described by Juan Peron in "Evita" as "the art of the possible."

Finally the rationale for the legislation must be clearly thought out and be persuasive. The rationale for the Conciliation Court legislation included the following points: (1) The use of conciliation in settling custody and visitation disputes encourages family self-determination,

7 5

or "private ordering", which takes government out of the lives of families and helps them to develop their own skills in negotiating conflict in the future. (2) The conciliation model involves all interested parties in the dispute and its reso- lution permitting, because of its more flexible forum, involvement with grandparents, step- mothers, and others who may have interest in the life of the child. (3) The use of a conciliation forum removes the parental role from the adver- sary process through which the legal divorce is accomplished. (4) The conciliation process fo- cuses on the future and establishes principles of future behavior rather than trying to assess blame by focusing on past conduct. (5) Concilia- tion promotes coordination between the Court, the attorneys, and the family. The Court process is best suited to divide property and to assess support, which are decisions made in the legal divorce. (6) Conciliation model is more cost-ef- fective. The most persuasive argument in favor of S.B. 961 was that the conciliation model is only one-fourth the cost of the trial process (See Attachment I), (7). The interposition of a concili- ation requirement before families go to trial, en- courages settlement, and as Robert Mnookin points out in his brilliant article, "Bargaining in the Shadows of the Law: Case of Divorce in the Courts"; the importance of the laws are not nec- essarily the law itself, but its effect upon private negotiations of all parties in the "shadow of the law" (1 2).

The passage of S.B. 961 (Attachment I I ) is an example of a law that is conceptually sound, involved negotiation and compromise between the existing programs, and met most of the requirements of being a more progressive way to achieve an end, as well as being more cost-effective. Having obtained the legislation, we in California learned, as we had guessed anyway, this is merely the first, and perhaps the easiest step. The next step is to implement the I'egislation .

FOOTNOTES

1. Bohannon, Paul 1970, Divorce and After, Garden City, N.Y.: Double- day

2. Coogler, O.J., eta1 1 979, "Divorce Mediation: A Means of Facilitating Divorce and Adjustment". The Family Coordinator, April, pp. 255-259.

1973, "Conciliation Courts": The Reintegration of Disintegrating Families", the Family Coordinator, Vol. 22, No. 1, Januiary 1973, pp. 63-72.

1 9 7 7 "Post-Divorce Counseling in a Conciliation Court". Journal of Divorce, Vol. 1, pp. 55-65.

1 9 7 4 "Facilitating Agreement-The Role of Counsel- ing in the Courts", Conciliation Courts Review, Vol.

3. Elkin, Meyer

4. Elkin, Meyer

5 . Folberg, Jay

12, pp. 17-20, 6 . Glick, Paul C.

1975, (Current Population Reports, Series p-23, No. 52, Bureau of the Census). Washington, D.C., U.S. Government Printing Office.

1 980, Divorce Mediation: The Rational Alternative, Toronto, Canada: Personal Library Publishers.

1977, All Our Children New York: Harcourt Brace, J ova n ovic h .

1979, "Child Custody-A Legal Problem", California State Bar Journal, pp. 156-1 6 1 .

1976 , "Crisis Intervention Techniques in Insuring Conciliation Court Survival", Conciliation Courts Re- view, Vol. 14, No. 2, pp. 29-32.

1978, "Custody of Children in a Divorce Process: A Fa rn i I y Self - [I e te r m i nation Mode I ' ' . Con cilia tion Courts Review, Vol. 16, pp. 2-12.

12. Mnookin, Robert & Kornhauser, Louis 1979, "Bargaining in the Shadow of the Law: The Case of Divorce". Yale Law Journal, pp. 950.

1974 , "Disspelling the Stereotype of the Broken Home:, Concili,ation Courts Review, Vol. 12, No. 2, pp. 7-1 6 (December 1974)

14. Roman, Me1 and Haddad, W . 1978, Disposable Parent. New York: Holt, Rinehart and Winston.

1978, "Child Custody and the Conciliation Courts". Conciliation Courts Review. Vol. 1 6 (Sept.): pp.

7 . Irving, Howard

8. Keniston, Kenneth

9. King, Donald B., Judge

10. Mclsaac, Hugh

11. Milne, Ann

13. Riccj, lsolina

15. Taylor, L. and ti. Werner

25-32. 16. Wallerstein, Judith S. & Kelly, Joan

1980 , Surviving the Breakup: How Children and Parents Cope With Divorce. New York: Basic Books, Inc.

1977, "Conciliation Counseling: The Court's Effec- tive Mechanism for Resolving Visitation and Custody Disputes", The Family Coordinator, Vol. 2 6 (4). pp. 444-447,

17 . Weiss, Warren and Collada, Henry

76

Attachment I

CONCILIATION VS. TRIAL COURT CUSTODY AND VISITATION MEDIATION

COMPARATIVE COST - 1979

LOS ANGELES COUNTY

I. CUSTODY & VISITATION MEDIATION

A. Conciliation Cost

S2385.+8 p/m;.o = 13.55 /hr. 1 4 h r . m . Fringe Benefits 25.6% x 13.55 Overhead Cost 41.6% x 13.55

B. Trial Court Cost

63,839.53 Commissioner 2,427.00 Court Reporter 1,867.00 Court Clerk 1,919.00 Sheriff I 1

S10,052.53

10 052 53 /no. = $456.93 p/day __Lz;);__p Fringe Benefits 2 5 . 6 % x $456.93 Overticad Cost 41.670 x 456.93

C. Cost Comparison

1. Trial Court

1,041 x 763.90 = 7-

2. Conciliation h I S 1,733 x 3 X ' 22.56 =

$397,651.59

117,289.44

Net Savings

$13.55

3.47 5.64

$22.66 p7fir.

456.93

116.97 190.08 $763.98

$280,362.15

11. PREMARITAL CONSENT EVALUATIONS

A. Conciliation 1,492 x 1 hr. x $22.66 = $33,808.72

B. Trial Court $763.98 x 1,492 = 189,976.35

Net Savings Premarital Consent, $156,161.63, 6 p J d a Y

TOTAL SUMMARY OF SAVINGS - 1979 - - - C&V PMC -

77

Attachment I I

Senate Bill No. 961

CHAPTER 48

An act to add Section 46M to the Civil Code, and to amend Section 1731 of, and to repeal and add Article 2 (commencing with Section 1740) and Article 3 (commencing with Section 1760) of Title l l a of Part 3 of, the Code of Civil Procedure, and to amend Section 26840.3 of, and to add Section 26862 to, the Government Code. relating to marriage, and declaring the urgency thereof, to take effect immedi- ately.

[Approved by Governor Mzrch '27. lOB0 Filed with Secretary of State March 27, 1980 1

LEGISLATIVE COUNSEL'S D I G m SB 961, Sieroty. Marriage: conciliation courts. Existing law requires each superior court to exercise jurisdiction as

a conciliation court, and sets forth various provisions for the appointment of personnel to assist the conciliation court in disposing ofits business in carrying out its functions, the number, classification, compensation, and duties of such personnel differing according to the population of the county involved. This bill would repeal the law relative to conciliation courts and reenact such law in revised form, changing the name of such law to the Family Conciliation Court Law, deleting the latter provisions. and establishing uniform provisions for the appointment of personnel to assist the family conciliation court in disposing of its business in carrying out its functions, the classification in salaries of such persons to be determined by the board of supervisors involved.

Existing law specifies the duties of a supervising conciliation counselor.

This bill would delete such provisions and specify the minimum qualifications for a supervising counselor of conciliation or associate counselor of conciliation.

Existing law authorizes the destruction of specified records by a counselor of conciliation upon order of the judge of the conciliation court.

This bill would authorize such destruction only by the supervising coun~elor of conciliation.

Existing law does not provide for agreements between counties to provide joint conciliation court services.

This bill would so provide. Existing law does not specify that the jurisdiction of a conciliation

court with respect to controversies arising out of an instance of domestic violence are not exclusive.

This bill would so provide. Existing law does not grant jurisdiction to the conciliation courts

of controversies relating to child custody or visitation regardless of the parents' marital status. This bill would grant such jurisdiction. Existing law does not require mediation of an application for

modification of an order for child custody or visitation rights. This bill would so require, operative January I. 1981. Existing law provides for various filing and other fees for the

support of the conciliation court. This bill would revise such provisions. Under existing law. Sections 2231 and 2234 of the Revenue and

Taxation Code require the state to reimburse local agencies and school districts for certain costs mandated by the state. Other provisions require the Department of Finance to review statutes disclaiming these costs and provide, in certain cases, for making claims to the State Board of Control for reimbursement.

This bill provides that no appropriation is made by this act pursuant to Section 2231 or 2234 for a specified reason, but recognizes that local agencies and school districts may pursue their other, available remedies to seek reimbursement for these costs.

This bill would take effect immediately as an urgency statute.

The people of the State of California do enact as follows:

mended to read:

Law.

SECTION 1. Section 1731 of the Code of Civil Procedure is

1731. This chapter m a y be cited as the Family Conciliation Court

SEC. 1.5.

SEC. 2.

Article 2 (commencing with Section 1740) of Title l l a

Article 2 (commencing with Section 1740) is added to of Part 3 of the Code of Gvil Procedure is repealed.

Title l l a of Part 3 of the Code of Civil Procedure, to read:

Article 2. Family Conciliation Courts

1740. Each superior court shall exercise the jurisdiction conferred by this chapter, and while sitting in the exercise of such jurisdiction shall be known and referred to as the "family conciliation court."

In counties having more than one judge of the superior court, the presiding judge of such court shall annually, in the month of January, designate at least one judge to hear all cases under this chapter. The judge or judges so designated shall hold BS many sessions of the family conciliation court in each week as are necessary for the prompt disposition of the business before the court.

1742. The judge of the family conciliation court may transfer any case before the family conciliation court pursuant to this chapter to the department of the presiding judge of the supcrior court for assignment for trial or other proceedings by another judge of the court, whenever in the opinion of thejudge of the family conciliation court such transfer is necessary to expedite the business of the family conciliation court or to insure the prompt consideration of the case. When any case is so transfemed, the judge to whom it is transferred shall act ps the judge of the family conciliation court in the matter.

1743. The presiding judge of the superior court may appoint a judge of the superior court other than the judge of the family conciliation court to act as judge of the family conciliation court during any period when the judge of the family conciliation court is on vacation, absent, or for any reason unable to perform his duties. Any judge so appointed shall have all of the powers and authority of a judge of the family conciliation court in cases under this chapter.

1744. In each county in which a family conciliation court is established, or in which counties have by contract established joint family conciliation court wrvices, the superior court, or the superior courts in contracting couiities jointly may appoint one supervising counselor of conciliation and one secretary to assist the family conciliation court in dispsing of its business and carrying out its filnctions.

The supervising counselor of conciliation so appointed shall have the power to:

(a) Hold conciliation conferences with parties to, and hearings in proceedings under this chapter, and make recommendations concerning such proceedings to the judge of the family conciliation court.

(b) Provide such supervision in connection with the exercise of his jurisdiction as the judge of the family conciliation court may direct.

(c) Cause such reports to be made, such statistics to be compiled and such records to be kept as the judge of the family conciliation court may direct.

(d) Hold such hearings in all family conciliation court cases as may be required by the judge of the family conciliation court, and make such investigations as may jx required by the court to carry out the intent of this chapter.

(e) Make recommendations relating to preage marriages. (0 Make investigations, reports and recommendations as

provided in Section 281 of the Welfare and Institutions Code under the authority provided the probation officer in such code.

(8) Act as domestic relations cases investigator, (h) Conduct mediation of child custody and visitation disputes. The superior court, or contracting superior courts, may also

appoint, with the the consent of the board of supervisors, such associate counselors of conciliation and other office assistants as may be necessary to assist the family conciliation court in disposing of its business. Such associate ~~unselors shall carry out their duties under the supervision of the supervising counselor of conciliation and shall have the powers of the supervising counselor of conciliation. Office assistants shall work under the supervision and direction of the mupervising counselor of conciliation. The classification and salaries of persons appointed under this

section shall be determined by the h r d of supervisors of the county which by contract hns the responsibility to administer funds of the joint family conciliation court service. or by the b r d of supervisors of the county in which II noncontracting f d y conciliation court operates,

1741.

7 8

~

Attachment f I

Upon the petition of ....................................................

(Petitioner) And concerning

............................................ and

............................ Respondents

....................................................

1745. (a) Any p e r m employed as a supervising counrelor of conciliation or as an associate c o d o r ofconcili.tiOn shJl have the following minimum qualifications:

(1) A masters degree in psychology, social work. marriage, family and child counseling, or other behavioral science substmtiplly related to marriage and family interpersonal relationships.

(2) At least two yesrs'experience in counseling or psychotherapy, or both, preferably in a setting related to the areas of responsibility of the family conciliation court and with the ethnic population to be served.

(3) Knowledge of the court system of Cdifomia and the procedures used in family law cases.

(4) Knowledge of other resources in the cammunity to which clients can be referred for assistance.

(5) Knowledge of adult psychopathology and the psychology of families.

(6) Knourledge of child development, clinical issues relating to children, theeffects of divorce on children, and child custody research sufficient to enable a counselor to assess the mental health needs of children.

(b) The family conciliation court may substitute additional experience for a portion of the education, or additionat education for a portion of the experience, required under subdivision (a).

(c) The provisions of this section shall be met by all counselors of conciliation not later than January 1.1934. provided that this section shall not apply to my supervising counselor of conciliation who is in office on the effective date of t h i s section.

1746. The probation officer in every county shall give such assistance to the family conciliation court as the court may request to carry out the purposes of this chapter. and to that end the probation officer shall, upon request, make investigations and reports as requested, and in cases pursuant to this chapter, shdl exercise all the powers and perform dl the duties granted or imposed by the laws of this state relating to probation or to probation officers.

1747. Notwithstanding the provisions of Section lU, dl superior court hearings or conferences in proceedings under this chapter hall be held h private and the court shall exclude all persons except the officers of the court, the parties, their counsel and witnesses. Conferences m y be held with each party and his counsel separately and in the discretion of the judge, commissioner or counselor conducting the conference or hearing, counsel for one party may be excluded when the adverse party is present. All communications, verb! or written, from parties to the judge, commissioner or counselonin a proceeding under this chapter shall be deemed to be ofiicial information within the meaning of section 10(0 of the Evidence Code.

l3e files of the family conciliation cwrt shall be closed. The petition, supporting &davit. conciliation agreemekt and MY court order made in the matter may be opened to inspection by any party or his counsel upon the written authority of the judge of the family

Petition for Conciliation

(Under the Family Conciliation Court Law)

conciliation court. 1748. Umn order of the judge of the family conciliation court. the

supetvishig~counselor of cokcilation m y deitroy MY record, paper, or document filed or kept in the office of the supervising counselor of conciliation which is more than two years old, except records of child custody or visitation mediation, which may be destroyed when the minor or minors involved are I8 years of age. In his discretion the judge of the family conciliation court may order the microfilming of any such record, paper, or document.

1749. (a) Any county may contract with any other county or counties to provide joint family conciliation court services.

(b) Any agreement between two or more counties for the operation ofa joint familv conciliation court servicemay provide that the treasurer of one participating county shall be the custodian of moneys made available for the purposes of such joint services, and that the treasurer may make payments from such moneys upon audit of the appropriate auditing officer or body of the county for which he is treasurer.

(c) Any agreement between two or more counties for the operation of a joint family conciliation court service may also provide:

(1) For the joint provision or operation ofservim and facilities or for the provision or operation of services and facilities by one participating county under contract for the other participating counties.

(9) For appointments of members of the staN of the family concilwon fwrt including the supervising counselor.

(3) That, for specifid purposes. the mcrnbers of the staff of the b a y conciliation court including the supervising counselor, but excluding the judges of !he family conciliation court and other court p e ~ m e l , hal l be considered to be employees of one participating -ty-

( I ) For such other matters as are necessary or proper to effectuate the p~rpores of the Family Conciliation Court Law.

(d) The provisions of this chapter relating to famify concili;tion court services provided by a single county shall be equally applicable to counties which contract, pursuant to this section, to provide joint family conciliation court services. sa 3. .Article 3 (commencing with Section 1760) of Title 11. of

Put 3 of the Cdc of Civil Procedure is repealed. SEC. 4. Arltrl*- 3 (commencing with Section 1760) is ddad to

Title 11. of Part 3 of the W e of Civil R d u r e , to read:

Article 3. Procedm ' p for Conciliation

1760. Whenever MY controversy exists between spouses, or between parents regardless of their marital status when such controversy relates to child custody or visitation, which may. unlets a reconciliation is achieved, result in the dissolution or nnnulment of the marriage or in the disruption of the household, and there is MY minor child of the spouses or parents or of either of them whose welfare might be dected thereby, the family conciliation court shall have jurisdiction over the controversy. and over the parties thereto and dl persons having m y relation to the controversy as further provided in this chapter.

The family conciliation court shall also have jurisdiction over the controversy, whether or not there is a n y minor child of the parties or either of them, where such controversy involves domestic violence.

1761. Prior to the filing of any proceeding for determination of custody or visitation rights, dissolution of marriage, legal separation, or judgment of nullity of a voidable.marriage, either spouse or parent, or both, may file in the family conciliation c a r t a petition invoking the jurisdiction of the court for the purpose of preserving the marriage by effecting a reconciliation betwqn the parties, or for amicable rcttlement of the controversy between the s p o m or parents, so as to avoid further litigation over the issue involved.

1762. The petition shall be captioned tubstantidy as fo1iows:

In the Superior Court of the State of Califomin in and for the County of ..........

79

Attachment II

requests such assistance, All public oEcers in each ounty shall refer to the family conciliation court all petitions and complaints made to them in respect to controversies within the jurisdiction of the family conciliation court. The jurisdiction of the family conciliation court in respect to controversies arising out of an instance of domestic violence shall not be exclusive. but shall & coextensive with any other remedies either civil or criminal in nature that may be available.

1765. No fee shall be charged by any oficer lot filing the petition. 1766. The court shall fu a reasonable time and place for hearing

on the petition, and shall cause such notice of the fding of the petition nnd of the time and place of the hearing as i t deems necessary to be given to the respondents. The court may. when it deems it necessary. issue acitation to any respondent requiring him to appear at the time and place stated in the citation, nnd may require the attendance of witnesaes as in other civil c w s .

1767. For the purpose of conducting hearings pursuant to this chapter, the family conciliation court may be convened at any time and place within the county. and the hearing may be had in chambers or otherwise, except that the time and place for hearing shall not be different from the time and place provided by law for the hid of civii actions if any party, prior to the hearing. objects to any different time or place.

1768. The hearing shall be conducted informally IS a conference or a series of conferences to effect a reconciliation of the spouses or an amicable adjustment or settlement of the issues in controversy. To facilitate and promote the purposes of this act the court may. with the consent of both parties to the proceeding, recommend or invoke the aid of medical or other specialists or scientific experts, or of the prrtor or director of any religious denomination to which the parties m y belong. Such aid. however, shall not be at the expense of the court or of the county unless the board of supervbon of the county rpecifcdly provides and authorizes such mid.

1769. (a) At or after the hearing, the court may make such orders in respect to the conduct of the spouses or puents and the subject matter of the controversy IS the court deems n m u o r y to preserve the marriage or to implement the reconciliation of the spouses, but in no event shall such orders be effective for more than 30 days from the hearing of the petition. unless the parties m u t d y consent to a continuation of such time. (b) Any reconciliaton agreement between the parties may be

reduced to writing and, with the consent of the parties, a court order may be made requiring the parties to comply fully therewith.

(c) During the pendency of MY proceeding under this chapter, the superior court may order the husband or wife, or father or mother, 0s the case may be, to pay any amount that is necessary for the support and maintenance of the wife or husband and for the support, maintenance and education of the minor children, as the case may be. In determining the amount, the superior court may take into consideration the recommendations of a financial referee when such referee is available to the court. An order made pursuant to this subdivision shall not prejudice the rights of the parties or children with respect to any subsequent order which may be made. Any such order may be modified or revoked at MY time except as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke.

1770. During a period beginning upon the filing of the petition for conciliation and continuing until 30 days after the hearing of the petition for conciliation, neither spouse shall file MY petition for dissolution of marriage, legal separation, or judgment of nullity of a voidable marriage.

If, however, after the expiration of such period, the controversy between the spouses, or the parents, has not been terminated, either spouse may institute proceedings for dissolution of marriage, legal separation, or a judgment of nullity of a voidable marriage, or a proceeding to determine custody or visitation of the minor child or children. The pendency of a proceeding for dissolution of marriage, legal separation, or declaration of nullity, or a proceeding to determine custody or visitation of the minor child or children, shall not operate as a bar to the instituting of proceedings for conciliation under this chapter.

1771. Whenever any petition for dissolution of marriage, legal separation, or declaration of nullity of a voidable marriaKe is filed in the superior court, and it appears to the court at any time dllring thc pendency of the proceedings that there is any minor child of the spouses, or of either of them, whose welfare may be adversely nfkted by the dissolution of the mamalie or the disruption of the

houlehold or a controversy involving child custody, and that there appears to be some reasonable possibility of a reconciliation being effected, the case may be transferred to the family conciliation court for proce&gs for reconciliation of the spouses or amicable settlement of issues in controversy in accordance with the provisions of this chapter.

1772. Whenever application is made to the family conciliation court for conciliation proceedings in respect to a controversy between spouses, or a contested proceeding for dissolution of marriage, legal separation, or judgment of nullity of a voidable marriage, but there is no minor child whose welfare may be affected by the results of the controversy, and it appears to the court that reconciliation of the spouses or amicable adjustment of the controversy can probably be achieved, and that the work of the court in cases involving children will not be seriously impeded by acceptance of the case, the court may accept and dispose of the case in the same manner as similar cases involving the welfare of children are disposed of. In the event of such application and acceptance, the court shall have the same jurisdiction over the controversy and the parties thereto or having any relation thereto that it has under this chapter in similar cases involving the welfare of children. SEC. 5. Section 4607 is added to the Civil Code, to read: 4607. (a) Where it appears on the face of the petition or other

application for an order or modification of an order for the custody or visitation of a child or children that either or both such issues are contested, as provided in Section 4600,4600.1 or 4601, the matter shall be set for mediation of the contested issues prior to or concurrent with the setting of the matter for hearing. The purpose of such mediation proceeding shall be to reduce acrimony which mey exist between the parties and to develop an agreement assuring the child or children's close and continuing contact with both parents after the marriage is dissolved. The mediator shall use his or her best efforts to effect a settlement of the custody or visitation dispute.

(b) Each superior court shall make available a mediator. Such mediator may be a member of the professional staff of a family conciliation court, probation department, or mental health services agency, or may be any other person or agency designated by the court. In order to provide mediation services, the court shall not be required to institute a family conciliation court. The mediator shall meet the minimum qloalifications required of a counselor of conciliation as provided in Section 1745 of the Code of Civil Procedure.

(c) Mediation proceedings shall be held in private and shall be confidential, snd all communications, verbal or written, from the parties to the mediator made in a proceeding pursuant to this section shall be deemed to be official information within the meaning of Section 1040 of the 'Evidence Code.

(d) The mediator shall have the authority to exclude counsel from participation in the mediation proceedings where, in the discretion of the mediator, exclusion of counsel is deemed by the mediator to be appropriate or necessary. The mediator shall have the duty to assess the needs and interests of the child or children involved in the controversy and shall b entitled to interview the child or children whew the mediator d e e m such interview appropriate or necessary.

(e) The mediator may, consistent with local court rules, render a recommendation to the court as to the custody or visitation of the child or children. The mediator may, in cases where the parties have not reached agreemen1 as a result of the mediation proceeding, recommend to the court that an investigation be conducted pursuant to Section 4602, or that other action be taken to assist the parties to effect a resolution of the controversy prior to MY hearing on the issues. The mediator may. in appropriate cases, recommend that mutual restraining orders be issued, pending determination of the controversy, to protect the well-being of the children involved in the controversy. Any agreement reached by the parties as a result of mediation shall be reported to the court and to counsel for the parties by the mediator on the day set for mediation or any time thereafter designated by the court,

( f ) The provisions of this section shall become operative on January 1, 1981.

SEC. 6. Section 26840.3 of the Government Code is amended to read: 26840.3. (a) The superior court in any county may, for the

support of the family conciliation court or for conciliation and mediation services provided pursuant to Section 4607 of the Civil Code, upon action of the board of supervisors to provide all space costs and indirect overhead costs from other sources. increase:

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Attachment I I

(1) The fee for filing a petition, except a joint petition filed pursuant to Section 4551 of the Civil Code, for bssolution of a marriage, legal separation, or nullity of a marriage, and the fee for a response to such a petition, by an amount not to exceed fifteen dollars ($15).

(2) The fee for issuing a marriage license, by an amount not to exceed five dollars ( $ 5 ) .

(3) The fee for issuing a marriage certificate pursuant to Section 4213 of the Civil Code. by an amount not to exceed five dollars ($5).

(b) The funds shall be paid to the county treasury and an amount equal thereto shall be used exclusively to pay the costs of maintaining the family conciliation court or conciliation and mediation services provided pursuant to Section 4607 of the Civil Code. SEC. 7. Section 26862 is added to the Government Code, to read: 26862. In any county in which there is a family conciliation court,

or in which counties have by contract established joint family conciliation court services, a fee of fifteen dollars ($15) shall be paid to the county clerk at the time of filing a motion, order to show cause, or other proceeding seeking to modify or enforce that portion of any judgment or order entered in this state or any other state which

orders or awards the custody of a minor child or children or which s p e c i f i i the rights of any party to the proceeding to visitation of a minor child or children. The funds shall be paid to the county treasury and shall be used exclusively to pay the costs of maintaining the family conciliation court.

SEC. 8. Notwithstanding Section 2231 or 2234 of the Revenue and Taxation Code. no appropriation is made by this act pursuant to these sections because self-financing authority is provided in this act to cover costs that may be incurred by it in carrying on any program or performing any.service required to be carried on or performed by it by this act. It is recognized. however, that a local agency or school district may pursue any remedies to obtain reimbursement available to it under Chapter 3 (commencing with k t i o n 2201) of Part 4 of Division 1 of the Revenue and Taxation Code. SEC. 9. This act is an urgency statute necessary for the

immediate preservation of the public peace, health, or safety within the meaning of Article I V of the Constitution and shall go into immediate effect. The facts constituting such necessity are:

In order to prevent the discontinuation of family conciliation courts, it is necessary that this act take effect immediately.

ASSOCIATION OF FAMILY CONCILIATION COURTS PUBLICATIONS AND VIDEO TAPES

The following publications and video tapes are available from AFCC, an interprofessional and inter- national association of judges, lawyers, counselors and mediators. Orders should be directed to Profes- sor Laurence Hyde, Executive Director, AFCC, c / o indicated.

Nova University Law Center, 3100 S. W. 9th Ave- nue, Ft. Lauderdale, Florida 3331 5 or Dr. Stanley N. Cohen at UOHSC, Psychiatry, 3 18 1 Sam Jackson Rd., Portland, Oregon 97201, unless otherwise

PARENTS ARE FOREVER

Parents Are Forever is an internationally ac- claimed pamphlet used by conciliation courts, family courts, lawyers, divorce counselors, mediators, clergy, mental health practitioners and agencies pro- viding services for divorcing and divorced families.

Originally written by the Los Angeles Concilia- t ion Court, its widespread distribution has been made possible by a grant to AFCC by the Family Law Section of the Los Angeles County Bar Association.

The pamphlet deals with "Visitation Guide- lines'', "Guidelines for Parents", " I f You Need Help". The overall purpose of this pamphlet is to assist parents to cooperate and to help them use the divorce experience as an opportunity for growth rather than defeat, for both themselves and their children.

Price per pamphlet is 1 0 C . (Contact Professor Hyde).

JOINT CUSTODY: A HANDBOOK FOR JUDGES, LAWYERS AND COUNSELORS

(Anne Milne, Editor, 1979)

This timely handbook is a multidisciplinary col- lection of 2 3 original and reprinted articles by researchers, family law specialists, conciliation court counselors, psychologists, psychiatrists, social workers and sociologists. This is the first book of its kind written especially for professionals. Its stated purpose is to provide a comprehensive exploration of the advantages and disadvantages of joint custody and to present some of the initial research findings.

The articles are authoritative, having been written by scholars and practitioners who are especially knowledgeable in their fields. The handbook is orga- nized into 6 sections: the nature of joint custody, pros and cons of joint custody, research, case law and joint custody, joint custody agreements and a comprehensive bibliography.

Price is $10.00. (Contact Professor Hyde). (Includes third class postage)

AN IMPORTANT MESSAGE TO STEPPARENTS (and their families)

This pamphlet, written by an interprofessional group of well known A.F.C.C. authorities on divorce and divorce-related matters, was written to assist stepparents as well as professionals in contact with these families. In addition to being helpful to step- parents, this pamphlet is a useful tool for judges,

are only a few sources for guidelines for stepparents. This pamphlet, using language that anyone can un- derstand, fills the need of all stepparents for "guide- lines" that will enable the "blended" family to in- deed blend in an atmosphere of acceptance, caring and mutual respect.

Price per pamphlet is 1 OC. (Cpntact Professor attorneys, mental therapists, clergy, agencies and others in the helping professions attempting to less- en the initial pain of stepparenting. At present there Hyde).

83 CONCILIATION COURTS REVIEW/VOLUME 19, NUMBER Z/DECEMBER 1981

GUIDELINES FOR ESTABLISHING COURT-CON- NECTED COUNSELING SERVICES: A manual available through Dr. Cohen at UOHSC at $2.00 per COPY.

M Y MOM AND DAD ARE GETTING A DIVORCE by Florence Bienenfeld: This appealingly illustrated full-color book expresses the feelings of children

whose parents are going through a divorce-and helps parents deal with those feelings. Available for $3.95 plus $1.25 postage and handling (discounts available in quantities) from the Changing Times Ed- ucation Service, Diivision of EMC Publishing, 180 East Sixth Street, Saint Paul, M N 55101 (Toll-free number 800-328-’1452).

VIDEO TAPES

CUSTODY RESOLUTION COUNSELING: A A FAMILY AFFAIR: A video tape on 16 rnm. video tape available for rental ($40 for 5 days) or f i lm designed to inform judges and other profes- purchase through Stanley N. Cohen, Ph.D., at sionals of the legal remedies available for domestic UOHSC, Psychiatry, 3181 Sam Jackson Road, Port- abuse. Avai lable th rough VISUCOM PRODUC- land, Oregon 97201. TIONS, INC., 1047 Whipple Av., Redwood City,

Calif. 94063. RENTAL-$60. for 3 days.

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