CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA
PROGRAMS IN OTHER JURISDICTIONS (continued)
The Family Court Services Program in Alameda County, California conducts mediation sessions for custody and visitation disputes as referred by the court. However, the program does not offer mediation services for child support disputes or for any other cases involving financial disputes. The Family Code of California states the following.
An agreement reached by the parties as a result of mediation shall be limited as follows:
- where mediation is required to settle a contested issue of custody or visitation, the agreement shall be limited to the resolution of issues relating to parenting plans, custody, visitation or a combination of these issues; and
- where a stepparent or grandparent seeks visitation rights, the agreement shall be limited to the resolution of issues relating to visitation.
Californian statute law governs the role of court-annexed mediation services throughout the state. Clearly, this law does not allow for mediation services to mediate financial issues. The reasoning for this exclusion is historical. Traditionally in the state, mediator qualifications have been focused on a background in mental health. This background has not been considered as providing appropriate skills for being able to address financial disputes in a fully competent manner. Although most counties, including Alameda County, also employ attorneys in their programs, these attorneys are also considered as Family Court Services mediators and as such, fall under the ambit of the governing legislation and cannot mediate financial disputes.
Despite, or perhaps in response to, these legislative provisions, various Californian counties, including Alameda County, have taken measures to set up their own unique programs addressed at remedying an observed need to provide services in regard to matters such as child support. In Alameda County, this initiative took the form of a program staffed by individuals known as "Financial Mediators." The program, originally set up as an experiment within the last couple of years, is still operating successfully out of the Alameda County court. The original goal of the program was to provide a resource to low-income couples who had no other available guidance about the court process. These parties are never represented by counsel.
This program is staffed by law students studying mediation in law school and is supervised by active local attorneys who work in the program on a volunteer basis. The goal of the financial mediator program is to assist in those domestic relations cases where neither party is represented by counsel and an application for establishment nor modification of child support has been made to the court by one of the parties. Unfortunately, this service is not available for other cases such as matters involving only one party who cannot afford counsel.
The general process followed is that all matters are first reviewed by the judge - generally in the form of a file review prior to a hearing - and the judge assesses the most appropriate forum for having the case processed. There is a system in place in the Alameda court whereby all legal aid, or pro per cases, are scheduled for hearing. During this day, the presiding judge determines which cases should be referred to other venues before being scheduled for a hearing before a judge. Those cases with more complicated facts and involving higher income parties might be referred out to a private attorney for further assistance. There is no program in place in Alameda County for dealing with cases of disparate financial means between the two parties, other than waiving filing fees on an individual basis.
At this same stage of the process, a matter might first be referred to the Family Court Services program for custody and visitation mediation before any other step is taken. If the custody and visitation dispute is successfully resolved during the course of the mediation, the mediator drafts an agreement for the parties to take back to court with them. Otherwise, the mediator conducts a custody evaluation that will ultimately be submitted to the judge in the form of a recommendation. The Alameda County Family Court Services engages in this form of "recommending" as opposed to confidential mediation.
After the custody and visitation mediation has been completed, the presiding judge might then decide that the circumstances of the case are appropriate for a financial mediation referral. As a first step to their involvement with the case, the financial mediators screen for domestic abuse within the relationship. A financial mediator will then meet with the parties in an attempt to affect an agreement between them. In those circumstances where it appears that the parties are not amenable to reconciling their positions, a financial assessment based on the state's child support formula is conducted. The mediators utilize a computer software program, "Disso Master," which produces the assessed child support amount once the relevant financial information has been input.
The financial information used by the mediator includes the two parties' financial statements which they would have been required to provide at the time of filing in the court. In addition to reviewing this basic information, the mediator might also request that the parties supply information such as employment verification or tax returns. In the absence of the documentation, the experience is that the parties themselves are quite vigilant about informing the mediator about any possible sources of income of the other party. If the additional financial information is not forthcoming, the mediator notes that fact on the file before forwarding the assessment to the judge for consideration. As most of the assessments are done by law students, the supervising attorney reviews them before they are forwarded to court.
Recently, it has been decided that the local family law bar association will cosponsor the financial mediator program in conjunction with Family Court Services. The latter agency will oversee the mediation training whereas the bar association will be responsible for conducting legal training.
The Alameda County financial mediator model resembles the family facilitator programs which have been developed to a further extent in both San Mateo and Santa Clara counties in California.
The family law facilitator program in California originally started as a pilot project, but since its inception, the program has flourished and continues to develop as an integral part of the services attached to the Superior Court in San Mateo and Santa Clara counties.
In San Jose, the program is housed in the Family Court Clinic, which offers a number of services to the public. These programs were designed for the lower income families of the area. The goal of the clinic is to provide assistance to those people who do not have the adequate financial means to hire attorneys to assist them through complex court processes.
Among the services offered by the Family Court Clinic are the following:
- an automated attendant telephone information centre containing "mail boxes" of information that people can access via a touch-tone phone when they call;
- written handouts with information and instructions about common court procedures and legal subjects;
- information workshops to provide instruction about various subjects, including overviews of certain features of the family law process such as child support (in addition, some of the workshops are designed to assist people fill out forms in regard to more simple issues, such as modification of child support and uncontested divorces); and
- individual assistance with court procedures, calculations, agreements, etc.
The automated attendant telephone information centre contains mail boxes available for access by the public. The information contained in this information centre includes the following.
- How to get an order for child support
- including overviews of the court's requirements and how to file for child support; information about the lawyers' referral program and self-help resources; information about where to get assistance with the calculations, for instance through the family court clinic.
- How to raise or lower child support
- including information about lawyer referral and self-help resources; mention of the role of the District Attorney's Office; procedure for filing documents with the court; avenues of assistance for determining an appropriate level of child support; instructions on how to obtain an interview with the family court clinic.
In addition, the automated system also contains similar information about other topics including the following: how to get or change a court order for custody or visitation; how to file for a divorce or finalize a divorce; how to get a restraining order; information about the family court clinic and orientation and mediation with family court services.
In regard to some of the individual assistance programs available, the following constitutes a partial list of the services offered to the public:
- do guideline support calculations;
- write agreements for establishing/modifying child/spousal support, custody/visitation orders;
- prepare Judgment to Establish Paternity;
- write orders after hearing including restraining orders and wage assignments;
- explain particular legal procedures;
- explain service of process;
- help to complete Judicial Council forms;
- legal referrals, e.g., low cost, specific language spoken, specific community served, etc.; and
- domestic violence referrals.
In regard to this particular service, Director of the San Jose program, Constance Jiminez reports:
the majority of the people we serve have either literacy or comprehension difficulties; mental, language or serious physical disabilities; or English is not their primary language. They not only cannot afford legal counsel, but they cannot readily read and comprehend instructions and self-help materials.
A fundamental service offered at the San Jose Family Law Clinic, one of the sites of the family facilitator program, is mediation. The program is staffed by a paid attorney and volunteer attorneys, law students and paralegals who work under the guidance of the paid attorney, technically the facilitator. The mediation sessions are aimed at child and spousal support and temporary custody and visitation issues. In contrast to many other mediation programs outlined in this report, the family facilitator program gives priority to conducting mediation for parents who have a child support motion pending in the court. Constance Jiminez reports:
[the program has] had tremendous success (at least 80 percent stipulated agreements) when [they] offer parents the opportunity to sit down and talk with each other in the presence of the Attorney-Mediator and receive a little education on the state guideline support calculation. When the parents are unable to reach a complete agreement, [the program] work[s] on all the areas where they can agree. Then each parent returns to the courtroom with a computer printout of the support calculation that represents that parent's position. The issues are narrowed and the parents are educated so that they can more effectively present their case to the court. Typically, the judicial officer can conduct these post-mediation hearings in a matter of minutes.
As mentioned, the program is currently staffed mainly by volunteers. Because of a high turnover of this volunteer staff, the training session is very brief, consisting of a two-hour session and then shadowing a more senior staff member for the first two or three shifts. There is also a Volunteer Manual available for the volunteers to consult.
The program is conveniently situated in the courthouse and is close to the clerk's office so access to court files and filing court documents and drafted orders is possible.
The family law facilitator programs in San Mateo and Santa Clara have been very successful since their beginning as pilot projects several years ago. The success of these programs has resulted in a proposal for legislative reform in the form of Assembly Bill no. 1058, now before the Senate.
These specific proposals for legislative reform have received endorsement from a governor's task force comprising members of California's judicial council.
A provision of the draft version of the proposed legislation states the following.
Child and spousal support are serious legal obligations. The entry of a child support order is frequently delayed while parents engage in protracted litigation concerning custody and visitation. The current system for obtaining child and spousal support orders is suffering because the family courts are unduly burdened with heavy case loads and do not have sufficient personnel to meet increased demands on the courts.
This anticipated legislation then established that family law facilitators would be appointed by the superior courts throughout the state to assist unrepresented parties. A proposed clause reads as follows.
Services provided by the family law facilitator shall include, but are not limited to, the following: providing educational materials to parents concerning the process of establishing parentage and establishing, modifying and enforcing child and spousal support in the courts; distributing necessary court forms and voluntary declarations of paternity; providing assistance in completing forms; preparing support schedules based upon statutory guidelines; and providing referrals to the district attorney, family court services and other community agencies and resources that provide services for parents and children.
The Friend of the Court process in Michigan state has been in place since 1919 and serves as an adjunct to the state's Circuit Court, operating as the domestic relations division. The program is now very well established, known throughout the state and performs a number of functions relating to domestic relations cases. The functions of the Friend of the Court include resolving domestic relations disputes presented to the court and enforcing the court's orders for custody, visitation ("parenting time") and support.
The Friend of the Court Act provides the general legislative framework for the program; however, there is substantial variation from district to district in regard to how the program is administered. The specific mechanics of office operation relate directly to the population concentration in the area and the geographical circumstances. For instance, in some areas, the staff of the Friend of the Court Office is responsible for a number of tasks including administrative functions, investigation, report writing and mediation. In larger centres however, it is possible for the staff members to function in a more specialized context, focusing on more specific duties.
The Friend of the Court's role in resolving domestic relations disputes includes mediation, investigation and recommendation and referee hearings. Generally speaking, the Friend of the Court becomes involved with a case after a court application has been filed. The Friend of the Court Office receives copies of all pleadings filed.
At this initial stage, the Friend of the Court sometimes makes the determination that a given case is amenable to holding a conciliation conference. However, conciliation conferences are held only in some districts across the state. The conciliation conference usually takes the form of informal discussion between the parties and an investigator or case worker employed in the Friend of the Court Office. The primary difference between this approach and the use of mediation is that the former approach is neither confidential nor voluntary for the parties. The investigator or case worker attempts to affect resolution of the issues with the parties. If the parties can agree on an appropriate course of action, a stipulation is drawn up and signed by both parties. If this approach is unsuccessful, the matter will then be redirected back into the court process. At this stage, the involved Friend of the Court employee can make a recommendation to the court about the appropriate disposition of the matter.
In regard to the mediation program of the Friend of the Court Office, the Friend of the Court Act clearly regulates both the qualifications of the mediator and the objective of the mediation sessions. The program is voluntary or upon referral of the court and is directed at resolving both child custody and parenting time (access) disputes, if possible. It is felt that child support and property distribution are issues not amenable to mediation because of the financial figures involved and because there is generally not so much latitude for the parties to arrive at their own resolution of the matter. Therefore, in a case involving multiple issues, the first stage would be to resolve custody and parenting time, through the mediation process if possible, and then to proceed to deal with the other surrounding issues in as straightforward a manner as possible, usually through the involvement of another employee of the Friend of the Court Office.
The mediation sessions are confidential, and the discussion of the parties with the mediator is classified as "privileged communication." Accordingly, the communications are not admissible as evidence in a subsequent court proceeding, should the parties not arrive at a consensual position. If the parties reach an agreement through mediation, either an attorney employed by the Friend of the Court Office (likely not the mediator) or another attorney prepares a consent order incorporating this agreement. This consent order is then provided to the court and entered as a binding order.
As noted, the issue of child support is not considered amenable to the mediation process in Michigan even when it is only part of a more comprehensive domestic relations matter. Rather, the Friend of the Court's involvement in regard to child support focuses on investigation of the relevant facts and submitting a written report and recommendation to the parties, their attorneys and the court. Subsection 5(e) of the Friend of the Court Act states that one of the functions of the Friend of the Court prior to adjudication of a domestic relations matter includes the following.
1. To investigate all relevant facts and to make a written report and recommendation to the parties and their attorneys and to the court regarding child support, if ordered to do so by the court. The written report and recommendation shall be placed in the court file. The investigation may include reports and evaluations by outside persons or agencies if requested by the parties or the court, and shall include documentation of alleged facts, if practicable. The child support formula developed by the bureau under Section 19 shall be used as a guideline in recommending child support. The written report shall include the support amount determined by application of the child support formula and all factual assumptions upon which that support amount is based. If the Friend of the Court Office determines from the facts of the case that application of the child support formula would be unjust or inappropriate, the written report shall also include all of the following:
- an alternative support recommendation;
- all factual assumptions upon which the alternative support recommendation is based, if applicable;
- how the alternative support recommendation deviates from the child support formula; and
- the reasons for the alternative support recommendation.
Generally, this function of the Friend of the Court operates concurrently with the mediation process. While a mediator addresses custody and parenting time, another employee operating as an investigator on the same file would deal with the child support issue once custody and parenting time have been resolved, if possible, and in isolation of those two issues if no agreement has been reached by the parties.
The Friend of the Court has a number of available avenues for collecting financial information from the parties. Some of the more commonly used procedures include requesting the parties to submit the information, accessing employment records and tax records and asking the court to subpoena the records where necessary. In the case of a self-employed individual, the Friend of the Court can impute income based on the person's prior employment experience and current lifestyle (including such factors as the person's place of residence and if applicable, the type of vehicle owned by the person). Generally, if this information is not otherwise available, it will be collected through evidence under testimony or through the person's affidavit. Alternatively, the Friend of the Court might send the person a subpoena for the financial information. Unlike Canadian jurisdictions, the Michigan court does not itself have such a comprehensive information gathering process in place. Rather, the court has become dependent on the Friend of the Court to gather the information, the latter having the experienced personnel and resources to do so in a more effective manner.
In addition to the child support reports, these investigators also conduct child custody or parenting time reports and recommendations when mediation has been unsuccessful or refused by the parties, or where there is an order for this service from the court.
The Friend of the Court Office is also responsible for conducting periodic reviews of a child support order subsequent to the order having been entered in a domestic relations matter. Section 17 of the Friend of the Court Act establishes this process. Some of the grounds for review set out in this section are as follows.
- Public assistance cases are to be reviewed automatically every 24 months unless neither party requests a review or the department of social services has notified the office that there is an existing good cause not to proceed with the review.
- Reasonable grounds for a review could include: temporary or permanent changes in custody of the child; changed needs of the child; likely access of an employed parent to dependent health care coverage; or changed financial circumstances of either parent.
- A written request is received from one of the parents (no more than one request is permitted every 24 months). In this case, the office has 15 days during which to determine whether or not to proceed with the review.
The Friend of the Court Office then has 180 days within which to conduct a review and obtain a modification of the order from the court, if appropriate.
The Friend of the Court referees have authority to hear a wide range of domestic matters. This process is outlined in greater detail in the section of this report entitled "Quasi-Judicial Hearing Officer Systems." It is stated in the legislation that the person who has conducted mediation for a particular case cannot subsequently sit as a referee for the same case.
As noted, the Friend of the Court also has substantial enforcement responsibilities following the entering of court orders on the domestic relations matters.
An important feature of the Michigan Friend of the Court model is its flexibility. Since it was established many years ago, the program has developed into a fairly complex system. The role of the Friend of the Court varies from district to district, to meet the specific needs of the given location and to fit in with the court practices in that location.
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