I’ll Take Potpourri for $200, Alex! ________________________________________

1. I’ll Take Potpourri for $200, Alex! ________________________________________ Selected Legal Topics in Child Support CSDA Annual Conference October, 2009

2. I’ll Take Potpourri for $200, Alex! Presenters: Bonnie Hough, State of California Center for Families, Children & the Courts Robert Sech, Orange County Department of Child Support Services Dennis Snapp, Los Angeles County Child Support Services Department Carlota Serna, Orange County Department of Child Support Services

3. Topic 1:Elkins Family Law Task Force Presenter: Bonnie Hough, Managing Attorney Center for Families, Children & the Courts Administrative Office of Courts Judicial Council of California Bonnie.Hough@jud.ca.gov

4. Elkins Family Law Task Force • Chaired by Associate Justice Laurie D. Zelon of the Court of Appeal, 2nd Appellate District (L.A.) • Appointed in May 2008 to: • Conduct a comprehensive review of family law proceedings; and • Recommend to the Judicial Council of California proposals that will • increase access to justice, • ensure due process, and • provide for more effective and consistent rules, policies, and procedures.

5. Elkins Family Law Task Force The Elkins Family Law Task Force was appointed in response to an August 2007 California Supreme Court opinion, Elkins v. Superior Court (2007) 41 Cal.4th 1337, which held that marital dissolution trials should “proceed under the same general rules of procedure that govern other civil trials.” The charge of the task force is to propose measures to improve efficiency and fairness in family law proceedings and ensure access to justice for all family law litigants.

6. Elkins Family Law Task Force Family law cases are critically important to litigants, children, and families, as well as the community at large. Increasing demands on courts dealing with family law cases include complex legal issues, high volume of cases, and staggering numbers of self-represented litigants. In many communities, over 75 percent of family law cases have at least one self-represented party.

7. Elkins Family Law Task Force At its initial meeting in June 2008, the task force defined values that have guided its work and will inform proposed recommendations: • Ensuring justice, fairness, and due process ; • Ensuring meaningful access for all litigants; • Using innovative techniques to promote effectiveness and efficiency; • Improving the status of, and respect for, family law litigants and the family law process; and • Securing adequate resources, including existing, reallocated, and new resources.

8. Elkins Family Law Task Force Guiding Principles The work of the task force is guided by the following six principles: • Courts will ensure consistent and timely access to equal justice for all individuals, families, and children in family law proceedings.

9. Elkins Family Law Task Force Guiding Principles (continued) • Statutes, rules, procedures, and practices will protect procedural fairness and due process rights of parties as well as seek to increase efficiency, effectiveness, consistency, and understandability. Simplification must not diminish due process rights. Task force recommendations will be evaluated for their potential impact on due process, fairness, and effective and timely access.

10. Elkins Family Law Task Force Guiding Principles (continued) • Court services, procedures, and calendaring should address the needs of parties, whether attorney-represented or self-represented. They should also adapt to the complex and diverse needs of individuals, families and children. Task force recommendations will be cognizant of the various challenges litigants may have accessing the courts, including language barriers, cultural barriers, and disabilities.

11. Elkins Family Law Task Force Guiding Principles (continued) • The task force will identify the resources courts require to handle increasingly complex and demanding family law caseloads. Investing in the modernization of family law courts will improve the quality of outcomes for Californians and enhance the priority given to and status of family law proceedings.

12. Elkins Family Law Task Force Guiding Principles (continued) • The task force is aware of the unique opportunity to make far-reaching, positive changes in family law. The task force is mindful of the long-term impact of family law on individuals, families, children, and society.

13. Elkins Family Law Task Force Guiding Principles (continued) • The task force will develop its recommendations through an inclusive process that relies on consultation with interested stakeholders and the public, as well as coordination and collaboration with ongoing related projects and efforts to improve family law.

14. Elkins Family Law Task Force Diverse Membership With Extensive Expertise • The 38-member task force includes appellate court justices, judges, court commissioners, private attorneys, legal aid attorneys, family law facilitators, self-help center attorneys, court executives, family court managers, court administrators, and legislative staff. • Members have extensive experience in all aspects of family law and represent courts and diverse cultural and economic communities from throughout the state.

15. Elkins Family Law Task Force Input Sought Through Several Channels • Focus groups conducted across the state; • Research on best or promising practices both within and outside of California; • Presentations from task force members and other experts about different aspects of the court process; • Public hearings; • A survey of bar members; • Public comment, solicited via the Web, e-mail, and regular mail; and • Circulation of draft recommendations

16. Elkins Family Law Task Force • The task force has sought input from all stakeholders, including litigants, attorneys, judicial officers, and court staff and will continue to do so as it develops its recommendations. • Written comments and specific suggestions from interested stakeholders are welcome. Please e-mail: elkinstaskforce@jud.ca.gov.

17. Topic 2:Admissibility of SDU Records Presenter: Robert Sech, Deputy Dep’t. Counsel Orange County Department of Child Support Services Rsech@css.ocgov.com Phone: 714-347-8126

18. Admissibility of SDU Records Objectives Admissibility of SDU records. Possible roadblocks that judicial officers or counsel might pose regarding this admissibility. Arguments to detour around those roadblocks

19. SDU is a Reality….

20. Where to start??? “What’s SDU, and how can I get in on it?”

21. SDU is required…. 42 USC 654 (b) (mandated by this section) 42 USC 654 (g)(1) Family Code § 17309 SDU is a federally required function/unit. Must be operated by CA IV-D agencies for purposes of collecting/distributing child support.

22. Background: Evidence Code §1280 “You want WHAT entered into evidence?”

23. Evidence Code § 1280 Writing made by and within scope of a duty of a public employee. Writing is made at/near time of act, condition, or event. Sources of information, and method and time of preparation were such as to indicate trustworthiness.

24. Roadblock #1 Do Bank of America employees, acting as agents for a public agency, qualify as “public employee(s)” under the Evidence Code?

25. Roadblock #1 Evidence Code § 195: “public employee” defined. Valid argument that certain employees of Bank of America are agents of DCSS. Case law: Bhatt v. Dept. of Health Services (2005) 133 Cal.App.4th 923

26. Roadblock #1 Bhatt – Trial court had too narrow a view of “public employee.” Delta Dental personnel could be considered “agents.” B. of A. has same statutory duties that a State of CA employee would have.

27. Roadblock #1 Are County DCSS employees “agents” of the state? LCSA employees are not free to randomly alter state records. LCSA employees’ work in accessing & reporting the content of SDU records is presumed to be regularly & accurately performed.

28. Roadblock #1 See also Evidence Code § 664 (it is presumed that official duties are regularly performed).

29. Roadblock #2 Are SDU records prepared by this agent admissible as “Official Records” per Evidence Code § 1280??

30. Roadblock #2 Judicial notice of E.C. § 1280 components. Toughest part: Showing records are made “at/near the time the payment was received…” Federal law requires that SDU disburse payments within 2 business days of receipt.

31. Roadblock #2 Bhatt court did NOT require person making an entry to have personal knowledge of the transaction. People v. Dunlap (1993) 18 Cal.App.4th 1468. Rap sheet admitted as official record. Admitted w/o testimony of record’s custodian (or even another qualified witness)

32. Roadblock #2 Trustworthiness prong of § 1280

33. Roadblock #2 How to convince court that records are trustworthy? 42 USC 654 is very detailed. (judicial notice) Full record of collections & disbursements must be maintained. Recording done per statutory duties.

34. Roadblock #2 Can a litigant offer evidence to rebut presumption that official duties are regularly performed ? (see Evidence Code § 664). All LCSAs in CA depend on the SDU records daily. (recall reference in Dunlap re: rap sheets). Obligors are mailed statements each month.

35. Roadblock #3 Does an LCSA employee’s access of SDU/CSE records call into question the document’s admissibility?

36. Roadblock #3 Biggest concern: LCSA employees are not the employees who record the payment info. Courts may see a breaking of “chain of custody.” What argument(s), if any, can counter this?

37. Roadblock #3 Nothing to suggest that records themselves are inherently unreliable. LCSA employees cannot change SDU records. Mere fact that LCSA employees are not part of recording process should not lead to inadmissibility per se.

38. Roadblock #3 Mistakes? A problem? Mere fact that mistakes occur does not make the records inadmissible. Accuracy of record can be questioned on cross-exam (see People v. Lugashi (1988) 205 Cal. App. 3d 632.

39. Roadblock #4 How can an LCSA employee testify as to a document which he/she did not prepare?

40. Roadblock #4 Paralegals from O.C. and other counties toured SDU & underwent training while there. Training does not make them “expert” witness. Evidence Code § 1280: no requirement re: admissibility issue. Testimony could be helpful as to “the numbers.”

41. Roadblock #4 As in the Bhatt case, person can testify as to a document’s significance once it is in evidence.

42. And just remember…. “It’s not whether you win or lose…it’s how you looked while you were doing it.”

43. Topic 3: Release of Liens in Difficult Economic Times Presenter: Dennis L. Snapp, Chief Technology and Analysis Division Los Angeles County Child Support Services Department, Dennis_Snapp@cssd.lacounty.gov

44. Real Property Liens • Placing a lien on real property is a mandatory action on all judgments and orders that contain an amount of support in IV-D cases. • This procedure ensures that arrearages are evaluated when a delinquent NCP purchases, sells or refinances real property in the county of recording.

45. Automated Generation of Liens • A real property lien may be generated automatically if CSE determines the conditions are met. • CSE generates the Notice of Support Judgment. • In cases where the NCP is out of state – a task is generated but no automated out of state liens.

46. Real Property Liens • Notices of Support Judgment are filed • In the county of the order • In the county where the NCP resides • In the county where the NCP’s parents reside, and • In the county where the CSE believes the NCP owns property.

47. Real Property Liens • Once the escrow company or lending institution has made a request for Demand, the LCSA may take up to 15 calendar days to provide the information. Once the LCSA review is complete, a Demand for payment (DCSS-0238) will be generated notifying the NCP of the amount owing.

50. Types of Releases • Release of Lien – General (DCSS 0240) • Release of Lien – Specific Property (DCSS 0240) • Satisfaction of Judgment (EJ-100) • Partial Satisfaction of Judgment (EJ-100) • Satisfaction of Matured Installment (EJ-100) • Subordination