A Child-Centered Response to the Elkins Family Law Task Force

Abstract

In Elkins v. Superior Court 163 P.3d 160 (Cal. 2007), California’s Supreme Court asked the Judicial Council to form a task force to make recommendations to increase “access to justice” in family court because it was concerned about rules, policies, and procedures that put self-represented litigants at an unfair disadvantage in parentage and dissolution cases.

Neither the task force's report in 2010 nor the legislation that the report inspired the same year addresses children’s due process rights, even though children ordinarily have no access to justice. This article shows that due process sometimes requires the trial court to appoint counsel for children to obtain the information the court needs to address children’s interests.

This article also explains why trial courts should not construe the new Elkins laws to impose new and unique restrictions on children’s lawyers, and proposes new legislation and court rules to clarify children’s due process rights and minors’ counsel’s ethical duties when custody is at issue in family court.

Keywords: Children, Custody, Counsel, Elkins