SD22 - The Family Court Pilot Project


Executive Summary:
For over forty years, the judicial and legislative branches of government have been concerned about the handling of family law matters in Virginia's courts and have debated whether a court which has jurisdiction over all family controversies would better serve our citizens. Numerous studies have been conducted by both the General Assembly and the Judicial Council of Virginia regarding the adjudication of family matters.

The 1989 Session of the General Assembly enacted legislation which directed that the Judicial Council establish an experimental family court program (Chapter 641, 1989 Acts of Assembly.) Pilot courts began operating under the program January 1, 1990 and ceased to accept new family court cases as of December 31, 1991. The Judicial Council is charged by § 20-96.2 of the Code of Virginia with the responsibility of reporting "its findings concerning the impact of the experimental family court program on the Commonwealth's judicial system by December 31, 1992, to the Governor and the General Assembly." This report by the Judicial Council fulfills this statutory mandate.

The enabling legislation for the Family Court Pilot Project placed jurisdiction and responsibility for child and family-related court issues in one court, a family court. The pilot family courts were authorized to hear not only all cases normally within the jurisdiction of the juvenile and domestic relations district courts but also suits for annulling or affirming a marriage and for divorce that were referred to them by the designated circuit courts. The designated circuit courts were required to refer to the family courts no less than 20% nor more than 50% of all suits for annulment or affirmation of a marriage and for divorce filed in the circuit court. The addition of divorce suits to the jurisdiction of the juvenile court which is traditionally charged with responsibility for child and family-related cases provided an opportunity in the family court to consolidate related family issues.

Final orders of the family court were appealed on the record to the Court of Appeals in any case involving a suit for annulling or affirming a marriage and for divorce, custody, visitation or civil support of a child, spousal support, and termination of residual parental rights and responsibilities as well as enforcement or modification of circuit court orders pursuant to § 20-79(c). This statute excluded the use of de novo appeals to the circuit court for the pilot family courts in these specified case types.

As required by law, the judges who served as family court fudges were drawn from both the circuit court bench and the juvenile and domestic relations district court bench. They represented both urban and rural areas of the Commonwealth. One characteristic common to the judges who served on the family court bench was their special interest in child and family legal issues. The use of commissioners in chancery by the family courts was prohibited.

Project Findings and Conclusions

As set forth by the Judicial Council, the mission of Virginia's judicial system is:

"To provide an independent, accessible, responsive forum for the just resolution of disputes in order to preserve the rule of law and to protect all rights and liberties guaranteed by the United States and Virginia Constitutions."

The ability of the courts to provide effective access to justice, to afford a quality resolution of disputes, and to instill in the public confidence and respect for the courts is essential to achieving this overall mission. The performance of the pilot courts in better serving troubled families is analyzed relative to these themes. The report also addresses problems with the current court structure and procedures in family law cases which detract from accomplishing this mission.

Effective Access to Justice

A judicial system which provides the opportunity to resolve disputes without undue hardship, cost, inconvenience or delay establishes the basis for effective access to justice by all persons. In practical terms for family law disputes, this means that a citizens' ability to gain access to the court is assisted by simple procedures; that the judges and other court personnel are courteous and responsive to the public; that legal services are available for the poor and those of modest means; that court fees for access to and participation in its proceedings are reasonable for the matter before the court; that the court has before it at the time the citizen appears all relevant issues requiring resolution; and that the responsibilities of the court are discharged in a timely and expeditious fashion.

• The procedures and structure of the court system that adjudicates family law cases need to be as simple as possible to be accessible to a broader range of the public and to accommodate litigants who use the courts without the benefit of legal counsel. The family courts were rated by the litigants as being the most user-friendly when addressing sensitive family and child issues.

• The court system should seek to reduce the overall cost of litigation by making it easier to handle uncontested family matters, by providing uncomplicated procedures to handle simple family disputes, by establishing alternative methods for resolving appropriate cases, and by limiting the use of decision-makers outside the court system which require litigants to pay additional legal costs.

• Families involved in a divorce suit are often also involved in one or more related cases before the juvenile court. In order to avoid fragmentation in the judicial system's resolution of multiple family problems, a comprehensive approach to family law cases must be developed.

• Limiting the length of time required to resolve emotionally charged family issues and bringing to a conclusion litigation which can have a detrimental impact on the children and adults involved is essential to the performance of a quality system of justice. The family courts were rated by the litigants most positively in all instances with regard to the timeliness of the conclusion of their divorce cases.

Quality Resolution of Disputes

Resolving disputes is the basic function of a court system. The challenge is to perform this task in such a way as to resolve disputes fairly and with a high quality of justice. In order to accomplish this task, especially in the area of family law, the courts should seek to resolve disputes rather than simply decide cases. The expectations of a family bringing its legal problems to court include a judicial system which is sensitive to the psychological impact on the parties of the litigation; which consolidates all cases related to that family; which is fairly and professionally administered; which provides finality to the court's decisions; and which treats all similarly situated litigants uniformly. Integration of these principles in the court system's structure and procedures should contribute to the quality resolution of disputes.

• Judicial resolution of family disputes must be comprehensive, provided quickly and delivered with a degree of certainty that permits families to reestablish stability for their children. The family courts received the most positive ratings from the litigants on issues concerning the psychological impact of the proceedings on the family.

• Since at least 20% of divorces have other related cases in the juvenile court, the consolidation of all family matters is critical to the judicial system's ability to provide a quality resolution of family disputes. All facts germane to the family situation need to be available to the court and be presented by the lawyers, witnesses and parties without the necessity of duplicative proceedings. The goal should be to assure that the greatest possible amount of information is in the hands of the decision-makers.

• In family disputes, when the focus should be on reorganizing the family unit and on reestablishing stability, especially when children are involved, the court system's procedures should provide the disputants a role in determining a mutually acceptable settlement of the issues in dispute.

• A court which uses only judges trained in family law and in the related aspects of family dysfunctioning will enhance professional excellence in decision-making and provide the highest quality resolution of disputes. Litigants expressed significantly greater satisfaction with the overall processing of their divorces in family court.

• Providing an appeal de novo in family law matters allows the adversarial process to protract already emotionally-charged issues and to delay the restoration of the reorganized family unit. These cases should be tried on the record so that the litigants and their children can adjust their relationships and resume their lives without the fear of another court reordering the scheme of things.

Public Confidence and Respect for the Courts

In order for the court system to fulfill its mission of preserving the rule of law, courts must maintain the respect, confidence and trust of the public. How well a court system performs in providing effective access to justice and a quality resolution of the disputes before it will determine whether the public has confidence and respect for the system. The deference accorded to courts stems not only from their actual performance, but also from how the public perceives justice to be done. A court which offers effective, responsive and appropriate methods for resolving disputes, which functions fairly, and which demonstrates that its decisions have integrity will not only afford a quality resolution of disputes but will earn the trust and confidence of the public.

• Litigants in the family courts consistently rated their court experiences more positively on questions reflecting their satisfaction with the court process and their case results, their assessment of the quality of justice which they were afforded and on the psychological impact of the proceedings on themselves and, where applicable, their children.

• The family courts, in particular as they operated with the juvenile court judges, performed more satisfactorily and earned greater respect and confidence than the courts which traditionally adjudicate family law matters, according to the project participants.

• The pilot project findings suggest that in family law cases the public wants courts which provide courteous assistance to citizens using the courts; which affordably and efficiently process the cases before them; and which have judges who are trained in family law and sensitive to the psychological and emotional impact of the litigation they hear.

Recommendations

Based on the project's findings and conclusions, recommendations are offered to improve the current methods of adjudicating child and family-related cases in Virginia. These recommendations are intended to be viewed as guiding principles which should be incorporated in the structure and procedures of Virginia's court system.

1. There should be one trial court which has comprehensive jurisdiction over child and family-related legal issues.

2. Wherever possible, the adversarial nature of our legal practices and procedures in the resolution of family law conflicts should be reduced. Litigants should have available dispute resolution methods which reduce hostility, address the underlying causes of the dispute, promote cooperation and communication, and restore a sense of control to the parties.

3. The use of commissioners in chancery in family law matters should be limited and ultimately abolished.

4. Trial court decisions in child and family-related cases should be appealed on the record as a matter of right to the Court of Appeals. The right of a trial de novo on appeal in such cases should be abolished.

5. A comprehensive court which adjudicates all family law cases should be easily accessible, affordable, user-friendly and expeditious for all who desire and are required to use it.

6. The previous five recommendations should be implemented by transferring from the circuit court to the juvenile court jurisdiction over all family matters. This jurisdiction includes divorce, annulment or affirmation of a marriage, custody, visitation, support, determination of parentage, termination of parental rights, change of name, separate maintenance, adoptions, petitions regarding records of birth, and appointment and supervision of guardians of the person of a child. Appeals of these cases would be on the record to the Court of Appeals. Criminal jurisdiction (delinquency, adult criminal, traffic, etc.) would remain not of record, with appeals de novo to the circuit court. The juvenile and domestic relations district court would be renamed the Family Court.

Implementation Plan

The Judicial Council proposes to implement the six recommendations arising out of the Family Court Pilot Project through a series of actions. These actions address revising the current court structure and its procedures; planning and providing for the necessary personnel and financial resources; and funding improved services for the families and children who come before the courts.

1. Court Structure. The principles of the Judicial Council's recommendations should be implemented by transferring from the circuit court to the juvenile court jurisdiction over family matters. The juvenile and domestic relations district court would be renamed the Family Court. Juvenile court judges and the clerks and personnel currently in the juvenile court clerks' offices would serve in the Family Court, after appropriate training to be provided by the Judicial Council of Virginia.

The Judicial Council will pursue amending the Rules of the Supreme Court of Virginia to provide for the appropriate conforming changes necessary to effect the Family Court.

2. Personnel and Financial Resources. The expanded jurisdiction of the new Family Court will require additional family court judgeships, clerks' office positions and mediators. A financial impact study conducted by the Office of the Executive Secretary of the Supreme Court shows that the required new resources would cost approximately $7.5 million annually. It is proposed that revenue be generated to offset these costs by a $3.00 increase in district court filing fees in civil cases and processing fees in traffic and criminal cases.

Several important assumptions were made in determining the estimated annual cost of the new family court system. No reduction in circuit court judgeships or in employees in the circuit court clerks' offices is proposed. The loss of the domestic relations workload will allow circuit court judges to return to a manageable caseload similar to that experienced ten years ago. It should also slow future growth of the need for new circuit court judgeships. Similarly, it has long been acknowledged that circuit court clerks' offices have been understaffed to handle their workload. Maintaining their current position levels will permit these clerks to more effectively process circuit court cases, provide better service to the public, and slow the need for new positions in the near future.

It is projected that approximately 25 new Family Court judges and 90 new court employees will be needed for the Family Court. Approximately 68 mediators will be required on a statewide basis to provide the capacity to have mediated any contested civil matter in the Family Court where the parties so agree.

3. Timeframes for Legislative Action and Local Plans. Legislation will be introduced in the 1993 Session of the General Assembly to implement the recommendations of this report with an effective date for the Family Court structure of January 1, 1995. To prepare for the statewide system of Family Coutts, several steps should be taken.

During 1993, the Chief Circuit Court Judge and Chief Juvenile and Domestic Relations District Court Judge should be required to develop jointly a plan for establishing a Family Court in their circuit. This planning process should involve the Circuit Court Clerk, Juvenile Court Clerk and Court Service Unit Director, interested members of the local bar and others concerned with better court service to the community. This effort would be supported by the Office of the Executive Secretary. Each circuit's plan should address the need for new judges, court personnel, equipment and facilities and relevant issues in the transition to the new court. These individual implementation plans will provide a vehicle to ensure that all resource and procedural issues are covered.

These plans would be submitted to the Judicial Council during the fall of 1993. The Council would then make recommendations to the 1994 Session of the General Assembly based on the circuit plans and include relevant fiscal needs in the 1994-1996 budget for the judiciary. It is proposed that the previously referenced fee increases become effective July 1, 1994, to permit the funding of needed personnel and the provision of training during the first six months of the fiscal year. The new Family Court system would then be staffed and ready to operate fully on January 1, 1995.