Editorial: Family court needs to enter electronic age

Published: Thursday, Feb. 14, 2013 - 12:00 am | Page 10A

Family law court is where the most intimate disputes are litigated – cases such as divorce, child custody, alimony and child support.

It's also where the contentious debate between court reporters and electronic recording is the most consequential.

Couples seeking to dissolve their marriages, make custody arrangements for their children, or dispute alimony and child support demands invariably arrive at family court in an emotional state, too distraught to hear or understand the blur of a half dozen or so court orders handed down in a typical case. Many who are poor come without lawyers.

State law bans the use of electronic recording devices in most courtrooms in California, including family court. If family law litigants want a record of what happens at their divorce or child custody hearings, they have to purchase the services of a court reporter, which in Sacramento costs a minimum of $239 for a half day. And that cost comes on top of more than $400 in court filing fees for a simple divorce.

The real choice many family court litigants face isn't between court reporters and electronic recording. It's between costly court reporters and nothing – no official record at all. Poor litigants can't afford court reporters. And that's a real problem.

Family law judges can hear 30 to 40 cases a day. To get through a calendar that crowded, they often deliver their orders in shorthand.

For example, a judge might write EOWE instead of "every other week-end," for a child visitation order. The parties who are handed a summary of the judge's rulings at the end of a hearing don't always understand what EOWE means. They can't always read the judges' handwriting.

If there is a miscarriage of justice in family court – one parent tells a lie, for example, that results in the other parent losing all custody rights – there is often no way for the wronged party to document what was said.

There's no record at all, no court reporter's transcript, no electronic recording, nothing.

The lack of a record makes it extremely difficult to appeal or to even know precisely what the court has ordered.

That has not always been the case. Until 2004, Sacramento courts allowed electronic recordings in family law. Diane Wasznicky, a veteran family law attorney and former president of the Association of Certified Family Law Specialists, says the system worked just fine back then.

Litigants, who were unable to remember what the judge's orders were, could buy a copy of the tape for $10 and listen to it for clarification. In cases where both sides were represented, opposing attorneys often used the tapes to refresh their memories, resolve conflicts and avoid further litigation. Only when one side wanted to appeal, did an official transcript have to be prepared.

Even after electronic recording was barred in family court for purposes of making an official record, some judges still used recordings to keep track of their orders and to refresh their own memories. But now, incredibly, even that is banned.

The lack of a record, any record at all has become an issue of simple justice. For too many litigants in family court, no record means no justice.

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