The Elkins Legislation: Will California Change Family Law Again?

52 Pages Posted: 15 Mar 2012 Last revised: 2 Apr 2012

Date Written: March 15, 2012

Abstract

As a result of the decision of the California Supreme Court in Elkins v. Superior Court, and the work of the Elkins Family Law Task Force established by the California Judicial Council in response to the Supreme Court's decision, the California Family Code recently underwent its most extensive reforms in nearly two decades. California has long been a national leader in innovations in the family law area. Indeed, California has led a decades-long trend in family law away from adversarial litigation methods as the primary means for resolving family law disputes. However, the Elkins family law changes represent a stunning reversal of course, back in the direction of increased adversarial litigation.

This article addresses three of the specific Elkins changes: (1) a requirement that live testimony be taken in all family law motion hearings; (2) modification of the role of minors' counsel to more closely resemble that of a traditional adversary advocate; and (3) changes that will increase the frequency of children testifying in custody disputes. The article contends that each of these changes is misguided, and calls on other states to decline to follow California’s lead with regard to this latest set of family law reforms.

Keywords: family law, child custody

JEL Classification: K19, K39

Suggested Citation

Berenson, Steven K., The Elkins Legislation: Will California Change Family Law Again? (March 15, 2012). Chapman Law Review, Vol. 15, No. 3, p. 443, 2012, Thomas Jefferson School of Law Research Paper No. 2022369, Available at SSRN: https://ssrn.com/abstract=2022369

Steven K. Berenson (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4205 (Phone)

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