How Family Court Judicial Officers Decide Issues
The following quote impressed me as well-articulated and generally accurate with regard to how judicial officers (i.e., judges and commissioners) decide issues:
“Judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.” – James L. Gibson, Ph.D.
Can it be better stated? What judicial officers “perceive is feasible to do,” however, is where significant problems arise. There is just too much law for judicial officers or anyone in the legal field to know everything, especially in haste when an opposing attorney offers the perception that a specific remedy to a disputed issue is within the judicial officer’s authority and appropriate. It may be neither. Hence, the attorney’s role is to be vigilant that the judicial officer is well-briefed on the law and facts to weigh each issue to know what can and cannot be done. It helps immeasurably if the judicial officer has contemplative time prior to the hearing or trial to foresee any flaws in arguments made by the attorneys and in the facts on which the arguments are based.
Often the judicial officer will not determine an issue as the client wants, no matter how much the client believes in another outcome, and no matter the evidence or how well each issue has been briefed and argued by the attorney. This simply could be a matter of the judge having different life experiences (they are human), and preferring a different result that he or she believes ought to be done. For this reason, having the judicial officer decide an issue can bear more risk than the parties settling it themselves. The parties always have the option to settle the issue themselves in a signed writing if they are willing to compromise.
Another problem is the appalling amount of reading the family court requires each judicial officer to do to be prepared for hearings. Imagine having to read several dozen requests for orders, responsive declarations, Income and Expense Declarations, lodged exhibits, and the like, on a daily basis. It must be overwhelming and verge on the impossible. Added to this is having to read poor writing that leaves judicial officers unable to understand what is being communicated. They may only note the strongest factual allegations they can understand from each of the parties’ filings, and bypassing facts that only the client thinks are important.
This is not to say that judicial officers are giving anything other than their good-faith best efforts. The reality is that the family courts are backlogged with cases, more often than not taking years to conclude while new cases are being filed at a high rate and assigned to the same judicial officer. I have learned to blame the system for being overburdened and not the judicial officer.
How Judicial Officers are Seated
Judges are either appointed by the Governor or elected by popular vote to fill a designated judicial seat. Commissioners are appointed by the Superior Court and serve at the discretion of the Court. Both judges and commissioners must be attorneys at the time they become judicial officers.
Commissioners can make binding legal decisions (orders and judgments) only on stipulation of the parties (the litigants). Their powers are prescribed in Code of Civil Procedure section 259. Because family court commissioners are appointed based on their knowledge of family law, meaning they practiced and excelled in family law, they are often more well-versed than judges, who generally are new to family law and have a steep learning curve.