Conflict Reduction Reform

CAFC is very pleased to announce that Governor Arnold Schwarzenegger signed AB 402 (Dymally, Family Law Conflict Reduction Act of 2006) on September 27, 2006. (See additional bill language here.) This bill enacted California's Collaborative Family Law Act. CAFC was directly responsible for the introduction and ultimate passage of this bill (see Mr. Dymally's letter of thanks to CAFC). The passage of AB 402 was the result of CAFC's continuing efforts that began with AB 1307 in 2005.

CAFC and the California Shared Parenting Alliance spearheaded AB 1307. While this bill did not pass a critical committee vote on May 3, 2005, there was strong support for reducing conflict and helping parents work together. (View the May 3rd hearing; 20 minute Windows Media Player file.) Though it did not pass, AB 1307 produced many productive meetings, sparked dialogue between stakeholders, and cemented a desire to reform policy in a way that will benefit children and reduce conflict. As a result Assembly Bill AB 402 was introduced as a vehicle to help reach those goals.

For the first time, AB 402 authorized a collaborative process to help divorcing parties in California avoid adversarial judicial proceeding to resolve disputes. Only Texas and North Carolina have similar statutes. AB 402 also contains two other significant provisions:

• It requires a court to issue a statement explaining the factual and legal basis for its custody decision. This requirement applies to custody proceedings upon the request of either party.
• It also requires the Judicial Council to create an information sheet for parties to inform them of options and resources to avoid costly court litigation and control the divorce process.

California's Collaborative Family Law Act [Family Law Code section 2013] will help fuel a national movement to look at alternatives to costly and emotionally draining court litigation. Alex Baldwin's recent interview with Larry King really makes the point and supports the use of collaborative practices in family law cases. (See the November 21, 2006, interview: Alec Baldwin on CNN).

In 2007, CAFC is sponsoring clean up legislation (AB 189: Dymally) to ensure that California's nascent collaborative law practice has standards and safeguards to protect the integrity of the process. Though we were successful at getting the Collaborative Family Law Act passed last year, some of the important procedural and technical amendments to the bill were lost at the end of the legislative process. This year's clean up bill is being sponsored by the Family Law Executive Committee of the State Bar (FLEXCOM).

Those who are most knowledgeable about Collaborative Practice are very concerned that without the technical amendments proposed in AB 189, the public will be vulnerable to legal professionals offering a "Collaborative Practice" process that lacks the standards and protections established internationally over the past 20 years. This legislation is required to preserve the integrity and ethics of the process. AB 189 proposes the following technical changes:

• Codifies the requirement that the attorneys that represent the parties within the Collaborative Practice process may not serve as litigation counsel should the process break down.
• Extends the confidentiality protections already present for mediation [Evidence Code section 1115, et seq.] and other legal discussions [Evidence Code section 1152] to the Collaborative Practice process. Mandated reporting of child abuse or neglect is not affected and the reporting obligations of mental health professionals are not affected.
• Consistent with the disqualification of the attorneys, it prohibits all mutually and jointly retained experts who were a part of the Collaborative Practice "team" from testifying in later litigation, absent agreement of the parties.
• Adds a request that a court not require any unnecessary court appearances that would interfere with the Collaborative Practice process and increase the cost to the parties, unless the court finds there is good cause to do so.