You have the right to remain silent. You have the right to an attorney. You have the right to a speedy trial. The majority of Americans are familiar with these constitutional rights, mostly as a result of watching TV shows that dramatize the courtroom. However, what most Americans may not realize unless they have had a personal encounter with the legal system, is that such rights are limited to criminal proceedings in which the state is the Plaintiff and the citizen is the accused. In fact, these basic rights barely exist in civil proceedings wherein the Plaintiff is not the State, but another citizen.
Over my eleven years as an attorney and practitioner of Family Law in San Diego, I have seen how our legal system functions from the inside out. Although the experience lacks the drama of courtroom television, I believe in the value of my job, and I enjoy helping families through difficult times and decisions. The experience at times leaves me hopeful, but just as often, I find myself frustrated with the speed at which our legal system functions. Unlike Law and Order, where criminals are caught, prosecuted and then sent to prison in one 40-minute episode, real world court cases can take months or even years to result in a verdict. This leads me to the most frustrating aspect of our current system, although it is one that impacts my clients every day: the delay inherent in the system.
Here, it may be useful to offer an example. In mid 2015, a father came to me with a serious concern about his son. He had a child custody order that was in place for several years, which left primary custody with the mom. However, this arrangement had become an issue. The mother had lost her job, refused to accommodate the father’s allocated time with his son, and was making serious accusations against the father that would impact his legal custody. To make matters worse, the mother was also endangering the son’s physical health directly through her actions. When the father filed a request to modify the custodial schedule, the mother reacted by filing a restraining order against the father, prohibiting him from seeing his son. It took almost three months and a multi-day hearing to lift this restraining order. Unfortunately, this was only the beginning of an even lengthier process to amend the custody orders. By the time the issue of custody was finally brought to court, it was already the early part of 2016. At this time the court set the case for an “evidentiary hearing”, or a hearing in which evidence could be presented and witnesses could give live testimony over a period of many hours. The evidentiary hearing was set for late 2016, but was delayed at that time due to critical information not being available. Inevitably, the trial date was moved to early 2017. Just 2 days before the hearing was to begin in early 2017, the court clerk called with bad news. The Judge had a personal issue, and could not make it to the court on the set hearing date. The Judge had no other openings. The result? An additional 3 month delay. Altogether, given these delays, it took two years for the initial custody order to be amended.
I wish that I could say that a 3 or 4 month delay is uncommon, but sadly, it is often the norm. One of the worst aspects of these delays is the further injustice they can breed. In East County courts, some family law departments give people a choice: one option is to have a 20-minute hearing within three weeks of the issuance of a restraining order, which leaves minimal time to present evidence or give a testimony; the other option is to delay the case for 6 to 7 months. This delay essentially creates a Faustian bargain: litigate now and give up the right to a full trial, or wait for a full hearing, which may mean not seeing your daughter or son for months. Unsurprisingly, many parents are unwilling or unable to wait, and end up going forward with hearings with minimal time to prepare, making their case in front of a judge who is forced to hear multiple cases that by all rights could each take an entire day. This system can create a spectacle, as many self-represented, economically disadvantaged individuals, unaware of their rights to have a full hearing, are grouped together to be heard in 20 minute blocks. Meanwhile the wealthier litigants, who solicit the advice and representation of attorneys, all ask for the long evidentiary hearings. How did we arrive at such a polarized system? The answer boils down to funding.
Unlike the criminal justice system that obligates the States to provide the accused with a speedy trial and therefore provide adequate funding to accelerate the process, the civil part of the justice system contains no such guarantees. The result has been a severe underfunding of the civil departments, including family law departments in California. The San Diego Superior Court is no exception. Over time this funding crisis has eroded the ability of the court system to hear cases in a timely manner. This is a major issue, as the decisions made by the family court are every bit as life altering and important as those of the criminal courts. In fact, family court cases involving accusations of violence, abuse, and child custody are often much more time sensitive than criminal cases, but these cases simply do not get priority. Since 2008, when the funding crisis first began, I have witnessed our court system slowly but inexorably grind to a halt. Cases that in other states would be heard in weeks, take months in California. Long hearings and trials that would historically be set for trial in a month or two, are instead set 6 months or more into the future.
Before I go further, I want to make one point very clear. As someone who interacts with the Judges and the court clerks every single day, I can attest that the individuals who work in the San Diego courts are exceptionally hard working and that we have some of the most wonderful, thoughtful and incredibly diligent judges. In fact, I have had the pleasure of presenting cases before judges that have read every submitted document, and could recall all of the facts in the statements sent to the court, despite carrying literally thousands of cases. Unfortunately, I have also had experiences where the proceedings were rushed, where the client did not have the ability to say all that needed to be said, and where the court had to make a decision based on incomplete information. This leads me back to the headline of this article: justice delayed can also mean justice denied. If a person is charged with a crime but then never taken to trial, and instead sits in a cell for years or decades, we call that injustice. What, then, are we to make of a father who cannot see his son for 8 months because the court does not have the resources to hear a restraining order? In the case I previously described, the court found that the mother had put her son’s life at risk through her behavior. It took two years for the court to have sufficient time and evidence to reach this determination. For every case where a lawyer can be afforded to take a case to trial and litigate for two years there are however thousands of the self-represented. There is no right to an attorney in family law.
As a San Diego family attorney, but also a citizen, I am concerned that despite the good intentions and hard work of the people in our justice system, we are left with a family law court that cannot adequately meet the needs of its citizens. We should all be concerned because unlike criminal proceedings, family law matters impact every family. Even if you have never been in a divorce, you likely have family and friends that have. Every person that has had to deal with the court system over the past eight years would attest to how difficult it has become. It is time for us as citizens and as taxpayers to recognize that the courts are every bit as essential as the other parts of our government because the judicial branch is the one part of our government that can and often does directly impact our personal lives. My hope is that those who have read this article, can gain some appreciation of the problem we are grappling with, and that you contact your representatives to bring the issue of judicial funding to the attention of our legislature.