SUGGESTED RULE COVER SHEET

GENERAL STATEWIDE INFORMAL DOMESTIC RELATIONS TRIAL (IDRT)

 

GR9 (e)(2)(A) Name of Proponent: Dennis “D.C.” Cronin

 

GR9 (e)(2)(B) Spokesperson: D.C. Cronin

 

GR9 (e)(2)(C) Purpose—the reason or necessity for the suggested rule, including whether it creates or resolves any conflicts with statutes, case law, or other court rules

 

The challenges of 2020 have afforded unprecedented opportunities. Advancing equitable access to justice commitments of statewide agencies, organizations, and individuals seeking to collaborate and coordinate efforts, a statewide Informal Domestic Relations Trial (IDRT) Rule affords families the opportunity for equitable accessible substantive and procedural justice regardless of geographical circumstance.

To equitably access substantive and procedural justice in all Superior Court Domestic Relations systems, the people of Washington State imminently require innovative, timely, cost effective, and efficient transformative options statewide.

A general statewide IDRT Rule promotes a less adversarial process for families and provides consistency in procedural process, thereby reducing associated risks of trauma compounded within the system itself and helping to address access barriers for many experiencing the legal system in domestic relations cases–overwhelmingly those most disparately impacted by the justice system as a whole, including people of color, victims of domestic and sexual violence, self- represented and low-income persons–as they maneuver through an overburdened legal system.1

In 2008, Barbara Babb, author of Reevaluating Where We Stand: A Comprehensive Survey of America’s Family Justice Systems wrote, “Court reform relative to family law matters has risen steadily over the past decade. States have restructured their justice systems to handle increasingly complex family law cases and burgeoning family law caseloads.”2

And, as Rebecca Aviel noted in the 2018 Fordham Law Review article Family Law and the New Access to Justice,3 “Family court . . . reformers are implementing transformative changes that are consistent        with access-to-justice values: these reforms are delivering dispute-resolution mechanisms that are faster, cheaper, and easier to maneuver, particularly for self-represented litigants.”

 

1https://ocla.wa.gov/wpcontent/uploads/2015/10/CivilLegalNeedsStudy_October2015_V21_Final10_14_15.pdf

2 Reevaluating Where We Stand: A Comprehensive Survey of America’s Family Justice Systems, Barbara A. Babb, 46 Fam. Ct. Rev. 230, 230 (2008) (footnote omitted)

3 Family Law and the New Access to Justice, 86 Fordham L. Rev. 2279 (2018)

 

The suggested Rule is not in conflict with existing statutes, case law or other court rules and is similar to Thurston County LSPR 94.03F Informal Family Law Trials [Updated Rule, January 13, 2020] and King County Emergency Local Rule Amendment LFLR 23. Informal Family Law Trials effective September 2020. Uniform, comprehensive Washington State domestic relations reform has intersectional systemic impacts, and an IDRT rule may provide a beneficial resource to superior courts and others committed to the equitable access to justice. The suggested rule recognizes the inherent authority and duty of all courts to manage their own affairs, so as to achieve the orderly and expeditious disposition of cases, prevent undue congestion in the court system, conserve scarce judicial resources, and manage caseloads fairly and expeditiously for all justice-involved persons in Washington State.

Similarly, the October 2015 Washington State Supreme Court Civil Legal Needs Study Update Committee chaired by Justice Wiggins identified “Family Related Problems” as a “Substantive Problem Area.” The 2017 Legal Services Corporation report, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low Income Americans indicates, “Twenty-seven percent of households with parents or guardians of children under the age of 18 have experienced a civil legal problem related to children or custody” between 2016 and 2017. In addition, the report identified civil legal problems related to family affect 17% of all low-income households, including domestic violence or sexual assault and filing for divorce or legal separation.

The suggested statewide rule for an IDRT option is an effort to provide access to justice in family law matters for unrepresented families in all Washington State superior courts. The IDRT also provides access to those individuals across Washington who can afford the Traditional Domestic Relations Trial, but elect not to do so, seeking a less adversarial resolution to their domestic legal matters.

Despite the investments of talent and resources of many during the past two decades, including the Washington State Supreme Court and the Office of Civil Legal Aid, Board of Judicial Administration (BJA), and other qualified entities, Washington courts and domestic relations practice continue to lag “behind the times” in transformative reform. Adoption of an IDRT Rule is where Washington State can begin, truly, as the Civil Legal Needs Study opined, meeting “the challenge” by “turning findings to action.”4

4 2015 Civil Legal Needs Study Update.

While family law practitioners and the public may experience “silo effects” as local jurisdictions attempt to formulate local rules in response to domestic relations administrative issues, Washington State has a wealth of existing research and resources available for collaboration including, but not limited to, the (ATJ), BJA, WSBA, ATJ, ECCL, Family and Juvenile Court Improvement Program, Unified Family Court program, Supreme Court and, our law schools, as well as professional associations. In light of the urgency due to COVID related impacts, implementation of a statewide IDRT Rule provides an opportunity for comprehensive statewide uniform domestic relations reform, providing best practice guidance as multiple local and statewide court recovery and unrepresented litigant groups discuss how to best move forward.

As the 2015 report Escalating Costs of Civil Litigation in Washington recommended, there is a basis for a two-tier litigation model in Washington superior courts. The IDRT is complimentary to such a two-tier system recommended by the task force. While not specifically recommended in the July 2016 Washington State Bar Association (WSBA) Board of Governors (BOG) Report, the BOG Task  Force  acknowledged  family  law  has  a  “constellation  of  concerns”  and  reserved further consideration of recommendations within the Escalating Costs of Civil Litigation (ECCL) Task Force “to future efforts except to the extent its recommendations also address this area of the law.”

Our surrounding geographical neighbors in Oregon, Idaho, and Alaska, implemented IDRT standards as early as 2015. A similar rule is in effect in Utah, and in 2017, a pilot program was launched in the Seventh Judicial District in Iowa, resulting in the Iowa Judicial Branch Informal Family Law Trial, implemented statewide by order of the Iowa State Supreme Court on December 1, 2020. Similarly, the 2018–2021 long-range plan from the Florida Commission on Access to Civil Justice includes study and research of IDRT.

In Alaska, the Rule, as amended through July 25, 2019, governing the IDRT is found at Alaska R. Civ P. 16.2. In Idaho the Informal Domestic Relations trial rule is found at Idaho Rule of Family Procedure 713. In Oregon the IDRT is found at UTCR 8.120 under Chapter 8: Domestic Relations Proceedings. In Utah the rule is found at Utah District Court Rule 4-904. Information concerning the Informal Family Law Trial Pilot Program can be accessed through the District Court Administration for the Seventh Judicial District of Iowa.

Further information from Alaska explaining and supporting an IDRT rule can be found at Alaska Court System Self Help Center: Family Law.

Further information from Oregon, explaining the differences between Informal and Traditional Domestic Relations Trials can be found at: Oregon Judicial Branch: Informal Family Law Trials.  Further information from Idaho can be found at Idaho Rules of Family Law Procedure Rule 713. Informal Trial.

Further information from Iowa can be found at Iowa State Supreme Court December 1, 2020 Order and Iowa Judicial Branch Informal Family Law Trial Program.

Further information from Utah can be found at Utah Courts Informal Trial of Support, Custody and Parent-Time. See also, William J. Howe III & Jeffrey E.Hall, Oregon’s Informal Domestic Relations Trial: A New Tool To Efficiently and Fairly Manage Family Court Trials, 55 Fam. Crt. Rev., 70 (Jan. 2017).

 

GR9 (e)(2)(D) Hearing: Due to the implementation of Thurston County, LSPR 94.03F Informal Family Law Trials [Updated Rule, January 13, 2020] and King County Emergency Local Rule Amendment LFLR 23 Informal Family Law Trials effective September 2020 as well as the number  of  longstanding  published  Washington  State  committee  and  task  force  reports, data, research, and studies containing recommendations to overcome barriers to equal access to justice, it is not believed a public hearing regarding a general statewide Informal Domestic Relations Trial suggested rule is necessary.

In addition, information from the currently implemented Informal Domestic Relations Trials in Alaska, Idaho, Iowa, Oregon and Utah Courts is readily accessible.

GR9 (e)(2)(E) Expedited Consideration: 2020 has presented unprecedented challenges and unprecedented opportunities, as evidenced by the dedication of countless individuals in local jurisdictions as well as through statewide task forces and workgroups addressing best practices during court recovery. The opportunity to uniformly impact barriers impacting equitable access to justice is now. The Board for Judicial Administration recommends domestic case standards of “90 percent of all domestic relations cases should be adjudicated within 10 months of the date of filing of the information, 98 percent within 14 months of filing, and 100 percent within 18 months”. Yet in 2019, 11,125 families5, up from 9,162 families in 2018, had domestic relations cases pending resolution over 18 months in Washington State Superior Courts6, as opposed to 2,371 families with domestic relations cases pending resolution over 18 months in 2000. 7 While the case management percentages may appear to have remained fairly consistent on paper, we have yet to see the 2020 impact COVID will have on these statistics. Yet, the number of cases reported do not reflect the financial and psychological impact of backlogged, delayed, and adversarial legal proceedings experienced by children, youth, parents, relatives and employers throughout our state, most often the most vulnerable, marginalized, and impoverished members of our communities. COVID has only made matters more traumatic and as such, expedited consideration of a statewide rule is warranted for families, courts, and communities. Even before COVID brought attention to the imminent need for civil legal equity throughout our state, one participant in the October 2015 Washington State Supreme Court Civil Legal Needs Study Update was quoted in the report as asking ‘ “Will people in my position, or worse off than I, get any sort of meaningful help?” ’. The reply, ‘ “The answer to these questions, and so many others, is up to all of us.” ‘ Despite the Campaign for Equal Justice funding legal aid for 31,000 families in poverty in 2018, two years pre-COVID, at least 3 out of 4 low income individuals are not able to access legal assistance when it is needed. 8 Private practice attorneys provide valuable pro bono service. Yet, valuable hours of research and committee time have yielded no discernable implementation  of  recommendations  designed specifically  to  address  access  to  justice  for all. There is a critical need for the Court to address the domestic relations judicial process for low income and other marginalized families by implementation of a statewide rule, which regardless of geographical location and local court resources, can promote equity and consistency. As noted by Jane C. Murphy & Jana B.Singer, Moving Family Dispute Resolution from the Court System to the Community, 75 MD.L. REV. ENDNOTES 9 (2016), “Everyone who works in family law . . agrees on two things: family court is not good for families, and litigation is not good for children.”  Respectfully, it would appear that upon which we are not able to agree continues to cause barriers for implementing best practices for the families of Washington State.

23              5 Superior Court 2019 Domestic Relations Case Management Statistics

6 Superior Court 2018 Annual Caseload Report

24              7 Superior Court 2000 Annual Caseload Report

8 https://legalfoundation.org/the-campaign-for-equal-justice/

 

Based upon nearly 20 years of research, studies, committees and task forces, respectfully, I request expeditious review and consideration of a statewide general IDRT system for domestic relations cases; a recommendation within the prevue and authority of the Washington State Supreme Court.

For disparately affected persons seeking timely and less traumatic adjudication of their domestic relations matters, as well as for the fiscal impact on counties and Superior Courts now exacerbated by the unprecedented COVID challenges of 2020 and beyond, expedited consideration is respectfully requested.

The original proposed rule for Informal Family Law Trials generated a number of helpful comments. Rather than pass or reject the Rule, the Rules Committee authorized Justice Yu to explore revisions to the proposal with the proponent. Justice Yu met with the proponents and Commissioner Jennie Laird, co-Chair of the SCJA Juvenile and Family Law Committee, and requested that they review the comments and make suggestions that might address some of the comments.

After several revisions and discussions with some of the stakeholders, including the SCJA, the attached revisions are being proposed for publication and comment. The proponent accepted the modifications and are persuaded that the changes address the concerns reflected in the comments