During the past decade, it has become increasingly (and uncomfortably) common for parties engaged in a child custody dispute to inject a new element into their not­so-civil war: an allegation that the other parent is guilty of child molestation or abuse. Whether or not the charge is true, terrible consequences result and the impact of such an allegation is immediate and profound. Social workers and county child protective services begin an investigation; the accused parent (or grandparent) may have access to the minor child severed pending completion of the investigation; the minor children involved may be subjected to a multiplicity of interviews and evaluations; and, regardless of the ultimate result, long­term psychological damage is certain to occur. In the midst of such marital bitterness, surrounded by acrimonious but as yet unproven allegations, traumatized children and disillusioned and confused parents can only hope for a cohesive and coordinated judicial arena to resolve these heart-wrenching situations. These already horrific problems are further exacerbated when the procedural and substantive mechanisms of the legal system are invoked.

There exists a fundamental difference between marital dissolution proceedings involving custody of minor children and proceedings for dependent children in the juvenile court under and pursuant to Welfare & Institutions Code Section 300. As reviewed and explained in the recent case of Seaman and Menjou,¹ in a dissolution proceeding, parents and other interested parties invoke the court's jurisdiction to determine rights to custody and visitation in accordance with the best interests of the child. By contrast, In re Benjamin D.² explains that in a dependency proceeding, the state acts to protect children who have been or are at risk of being harmed in specific ways as enumerated in Section 300.

The superior court in each county is empowered to exercise the jurisdiction of the juvenile court.³ The dependency court is the department of the juvenile court that handles cases dealing with dependent children.⁴

The differences between the two forums are vast and substantively significant. The chart below, Child Abuse Issues -- Dependency Court/Family Law Court, identifies and summarizes the wide array of issues and the respective differences between the dependency court and the family law court.

California statutory and case law have addressed the issue of the conflicting jurisdictional claims between the juvenile court and the family law court; however, neither a coherent policy nor a reliably consistent answer to the question of how to handle allegations of abuse or molestation which involve the potential jurisdiction of the dependency court and the family law court has been established. Into this uncertain judicial arena has been delivered the confused and complex disputes of a diverse troubled society.⁵

HISTORICAL PERSPECTIVE

A brief review of the inconsistent evolution of California case and statutory law will help place the disturbing conflict between the dependency court and family law proceedings into historical perspective.

In one of the earliest cases, Dupes v. Superior Court,⁶ the California Supreme Court held that the divorce court's prior jurisdiction did not defeat the jurisdiction of the juvenile court. The court cited the fundamental difference between divorce and juvenile proceedings, explaining that the purpose of the divorce court was to determine whether a marriage should be dissolved and to provide for the custody of children of the marriage if necessary, while the Juvenile Court was charged, as parens patriae, with the protection of children who were endangered by bad influences or surroundings. The supreme court has never overruled Dupes and it stands today in California as the single exception to the general rule that among courts of concurrent jurisdiction, that which takes jurisdiction first in time has exclusive jurisdiction.

The appellate court in In re William T.⁷ held that the concurrent jurisdiction of the juvenile and family law courts does not allow the family law court to seek to enforce custody orders that conflict or interfere with orders properly issued by the juvenile court. The court further elucidated the differences between family law court and juvenile court issues, as noted in Dupes:

In dependency proceedings, a private party does not invoke the jurisdiction of the [j]uvenile [c]ourt. A probation officer or social worker, through the services of child abuse or child protective agencies, determines whether proceedings in the [jluvenile [c]ourt are warranted and the filing of a petition is preceded by an investigation to determine if there is cause to commence such proceedings.

In In re Brendan P.,⁸ the Fourth District held that because the family law court had already made a determination as to custody of the minor child based upon the same factual and legal issues, the juvenile court lacked jurisdiction and could not re­litigate the identical facts. The court held that the first court to assume and exercise jurisdiction acquires exclusive jurisdiction. Brendan P. was criticized in later cases⁹ and was recently squarely overruled by the same Fourth District in In re Desiree B.¹⁰

In re Anne P.¹¹ also dealt with the issue of conflicting jurisdiction between the family law court and the juvenile court. The court of appeal in that case held that the family law court's previous custody order did not preempt the juvenile court's jurisdiction.

In In re Benjamin D., the Fourth District determined that the juvenile court could assume jurisdiction over an abused minor despite introduction of evidence of alleged abuse in a post­judgment modification of custody and visitation in the family law court. The Benjamin D. tribunal distinguished both Brendan P. and Lawrence S.¹² and stated that even if those two cases were not distinguishable, their holdings were rejected and they would not be followed.

In re Travis C. followed William T., Benjamin D. and Dupes, holding that despite the fact that there was a continued hearing pending in the family law court which involved factual allegations of sexual abuse by the minor's father, the juvenile court had jurisdiction over a petition containing the same factual allegations, in its role as parens patriae. The court distinguished Brendan P. on the ground that the court in Brendan P. incorrectly characterized the issues raised in the family and juvenile courts as "identical." The Travis C. court held that the purpose and operation of family law court and juvenile court basically differ and that, therefore, issues before those courts can never be identical. Additionally, Travis C. found no evidence of collusion between the mother and the DPSS to bring the dependency petition and found that, contrary to the holding in Brendan P. such collusion, even if it did exist, would not negate the statutorily conferred subject matter jurisdiction.

The issue in Seaman and Menjou was whether a trial court in a marital dissolution action may order one spouse to pay a portion of the other spouse's attorneys' fees incurred in the course of defending a dependency proceeding under Welfare & Institutions Code Section 300. Since an action under Section 300 falls under the juvenile court law rather than the Family Law Act, an award of fees would only be appropriate if the dependency proceeding would be considered "related to" the dissolution action. The appellate court concluded there was no inherent link between the two proceedings and refused to permit an award to the wife in the dissolution proceeding for attorneys' fees and costs incurred by her incident to the dependency proceeding.

Seaman and Menjou has been the subject of critical comment as being unduly restrictive in replacing what should be an exercise of trial court discretion as to the meaning of "related proceeding" with a jurisdictional standard of determining whether or not a case is related to a family law proceeding for purposes of a Section 4370 award of attorneys' fees. Subsequently, In re Marriage of Green¹³ treated Seaman and Menjou's discussion of the "related proceeding" issue in an affirmative way to reach a different conclusion: Green held that whether another action is "related" to a marital dissolution proceeding within the meaning of Section 4370 is a factual question for the trial court and was not precluded by the restrictive result in Seaman and Menjou.

In In re Roger S.,¹⁴ the family law court, in a dissolution proceeding between the parents, ordered monitored visitation with the minor child. Subsequently, the dependency court, acting on a petition filed by the Orange County Department of Social Services, ordered that the mother retain custody, the father continue with monitored visitation and both parents undergo psychological counseling. The father sought to present evidence to support an increase in his visitation on the ground that his mental condition had stabilized and that his former wife's behavior was the cause of the son's emotional problems relating to visitation; the dependency court refused to hear the evidence. The court of appeal held that the juvenile court erred by refusing to hear evidence regarding the appropriate visitation order to be transferred to the family law court upon termination of juvenile court jurisdiction over a dependent child. In addressing the conflict between the dependency court and the family law court, the Roger S. court observed:

Although both the family court and the juvenile court focus on the best interests of the child, the juvenile court has a special responsibility to the child as parens patriae and must look at the totality of the child's circumstances. "It is one thing for a family law court to determine the best interests of the child as between two parents under title 4 of the Family Law Act (Civ. Code §4600 et seq.). It is quite another for a juvenile court to determine the best interests of the child in a proceeding where there is the possibility both parents could lose custody or visitation rights.". . . By empowering the juvenile court to issue custody and restraining orders, the [[legislature has expressed its belief that "the juvenile court is the appropriate place for these matters to be determined and that the juvenile court's orders must be honored in later superior court proceedings." (Seiser, Custody and Restraining Orders in the Juvenile Court (Aug. 1990) Family Law NewsAlert (Cal.Ed) p. 8.) The trial court here, by refusing to accept evidence relevant to the visitation order was in danger of issuing an uninformed order which could fail to serve the best interests of the child.

In re Desiree B.,¹⁵ the most recent in this march of unhappy cases, held that litigation of custody issues in the family law court does not prevent the juvenile court from reconsidering factually identical issues. This was the case in which the Fourth District rejected its own prior reasoning in In re Brendan P. and agreed with the reasoning and analysis of Benjamin D. and Travis C. that the issues before the family law court and the juvenile court can never, in fact, be identical because of the important differences between the purpose and operation of the two courts and the state's overriding concern for the protection of minor children. Thus, Desiree B. held that the juvenile court may consider issues of alleged abuse previously litigated in the family law court and the juvenile court was not estopped from reconsidering factually identical issues. Some have seen Desiree B. as the resolution of this troublesome issue, removing as it did the glaring inconsistency of Brendan P. and reaffirming the different purposes and procedures of the two court jurisdictions. What has not been achieved, however, is a system of coordination and cooperation between the two superior court departments to handle these problems of family dysfunction and judicial needs.

CONSOLIDATION OF PROCEEDINGS

That this subject is of such surpassing importance is evidenced by a statistic which many will find both surprising and disturbing: approximately one­third of the work of the superior courts in California involves children and their families.¹⁶

A proposed amendment to Los Angeles Superior Court Rule 307 (which appears below) states that it is the policy of the court to encourage consolidation of proceedings in different courts where the same child is involved. The emphasis is, as it should be, on interdisciplinary training of judicial officers, notification of the pendency of multiple proceedings, chambers conferences between supervising judges and a well­coordinated process of implementing the standards involved to achieve the best possible judicial procedure for each particular case.

Local rules, however, are not sufficient. Inter­county proceedings in different courts, such as those seen in Travis C., mandate that the California legislature affirmatively act to create a statewide resolution of this continuing problem. Footnote 3 of the opinion in In re Benjamin D. acknowledged this issue.^l7 However, mere acknowledgment of this serious societal issue, by itself, is no longer sufficient; new legislation to implement by statute the type of rule embodied in the proposed revised Rule 307 is necessary.

Even commendable local rules, such as proposed Rule 307, do not take into consideration all significant factors in determining whether a case should be litigated in the family law or dependency court system. Recently, there have been efforts in the legislature to address due process constraints inherent in the dependency court system. These efforts include the proposed "1992 Family Rights and Equal Protection Package" sponsored by eight California legislators. Included in the proposed legislation was AB 2719, calling for the repeal of In re Malinda S.,¹⁸ which permits admission of hearsay testimony at a disposition hearing in dependency court.

The family law system and dependency court system provide for significantly different due process rights of the parties. In addressing the conflict between the two forums, it is essential for the legislature to reconcile the disparity that occurs when parties are forced to litigate complex issues (such as alleged sexual molestation of children) in the dependency court without traditional due process protection as opposed to litigating those same issues in a family law context. As long as a due process disparity continues to exist between the two systems, the legislature should also include, as essential criteria in any legislatively mandated consolidation rule, factors addressing the complexity of the litigation, discretionary permission for traditional due process discovery and established rules of evidence in order to arrive at the truth in any given case.^l9

ACCEPTABLE INCONSISTENCY

From a policy perspective, it must be acknowledged that the dependency court system is overburdened with a huge caseload of people who find the dependency court experience an unwanted involvement with the judicial system but who often lack the resources to object to or combat bureaucratic injustices.²⁰ On June 1, 1992, the Los Angeles County Grand Jury issued an investigative report that highlighted the staggering problems of the dependency court in Los Angeles County, including the enormous and growing caseload: 41,000 children, with 12,000 new children entering the system each year! When the dependency court system is brought into conflict with a family law dispute where economic realities and the complexities of the situation may cause the issues to be more closely scrutinized with greater legal precision, the confusion between the competing forums is exacerbated. The inconsistency of the present state of California law is, quite simply, unacceptable.²¹ The judicial system needs and must be given legislative guidance to avoid the perpetuation of the present unsettled state of the law.

The people of the State of California, particularly the children and families involved in these heart­wrenching situations, deserve no less and will be well served only if and when the legislature heeds the lesson found in the Book of Psalms: He heals their shattered hearts and binds up their wounds.²²

Jo Kaplan is the directing attorney of the Law Offices of Jo Kaplan, Dependency Court Legal Services, Inc., in Los Angeles. Jonathon Johnson is a partner with Johnson, Poulson & Slater in Los Angeles. This chart is applicable to dependency proceedings in Los Angeles County. Procedures may vary on some matters in other jurisdictions. This chart was originally prepared for the Beverly Hills Bar Association.

307. COORDINATION OF CUSTODY PROCEEDINGS.
Section 1. Policy of the Court. (a) The best interests of the child, litigants and court are promoted by early identification and coordination of custody proceedings involving the same child. To that end ail departments involved in custody issues shall cooperate to eliminate multiple custody proceedings. Whenever possible such proceedings shall be handled in one department and consolidated for purposes of trial (b) The judicial officer before whom the case has been consolidated shall be vested with all the authority possessed by all of the Judicial officers in any other department in which the matter was previously set. (c) It is the policy of the Los Angeles Superior Court that family law and juvenile dependency judges shall receive training in both family law and juvenile dependency rules, laws procedures. (d) In family law matters ail issues other than custody and visitation (including property division and support issues) shall be determined by the family law court. (e) In any coordinated or consolidated matter, adjudication/detention hearings shall be heard in a juvenile dependency department.
Section 2. Standards-To carry out the above policy the following standards are established: (a) Custody proceeding. As used herein the term "custody proceeding" is defined to mean one or more of the following custody proceedings: Custody under the Family Law Act (CC §4600 et seq.); guardianship (Prob C §300); juvenile dependency (WIC §300); juvenile incorrigibility (WIC §601), juvenile delinquency (WIC §602), adoption (CC §221 et seq.), termination of parental rights (CC §232 et seq.); emancipation (CC §60 et seq.); paternity and maternity under the Uniform Parentage Act (CC §7000 et seq.); writs of habeas corpus and warrants in lieu of habeas corpus (PC §§ 1474, 1497); protective orders to prevent domestic violence (CCP §545 et seq.); and mental health proceedings under the Lantorman Petris Short Act (WIC §5000 et seq.). (b) Identification. Any court hearing a matter involving the custody of a minor should determine at the earliest possible time if matters are pending in any other department which involves custody of the same minor. Counsel and parties appearing in pro per shall notify any judicial officer before whom they appear in a custody proceeding of any other custody proceeding involving the same child or children. Such notice shall be given at the earliest possible opportunity.
Section 3. Procedures. (a) When a judicial officer finds that another custody proceeding is pending that judicial officer shall forthwith notify the supervising judge of the juvenile dependency department of the multiple proceedings. (b) Upon verification of the existence of multiple proceedings the supervising judge shall set a chambers conference regarding possible coordination or consolidation. At least five days notice of said conference (time not extended per CCP 1013) shall be given to all counsel of record in each custody proceeding, to any party appearing proper and to any other person or entity at the discretion of the supervising judge. (c) At said chambers conference the court shall consider such arguments and evidence as the supervising judge deems appropriate. (d) Following the chambers conference the supervising judge shall consult with all trial judicial officers who are hearing any of the pending custody proceedings. (e) Within two weeks after the chambers conference, unless extension is required for good cause as set forth on the record or by minute order by the supervising judge, the court shall issue a minute order either declining to coordinate or consolidate, or coordinating or consolidating and assigning all pending matters to one court. (f) The supervising judge may hold such other hearings and take such other actions not set forth herein as deemed necessary. Section 4. Criteria. In implementing the standards set forth above the court shall/ should consider the following: (a) How long the case has been active in any particular trial department. (b) The number and length of hearings that have taken place in such trial department. (c) The judicial officer's familiarity with the parties and issues in the case. (d) The stage of proceedings in each court. (e) Whether there are allegations against both parents or only one. (f) Whether the juvenile dependency petition is detained or nondetained. (g) The extent to which other family law issues are tied to custody and visitation. (h) The financial resources of the parties. (i) The seriousness of the psychological issues raised by the case. (j) The presence of other children not of the marriage between the parties.

¹ Cal. App. 4th 1489, 2 Cal. Rptr.2d 690 (1991). ² 227 Cal. App.3d 1464,1469­70,278 Cal. Rptr.468 (1991). ³ WELF. & INSTITUTIONS CODE 1245. ⁴ WELF. & INSTITUTIONS CODE §§300, et seq. ⁵ See Richard A. Gardner, M.D., Parental Alienation Syndrome and the Difference Between Fabricated and Genuine Child Abuse, CREATIVE THERAPEUTICS (1987). Gardner describes the situation where one parent is consciously or unconsciously sabotaging the relationship between the child and the other parent. This can lead to extreme and conflicting accusations. A vast increase in these type of family disputes has occurred in the past decade. 6 176 Cal. 440, 168 P. 888 (1917). ⁷ 172 Cal. App. 3d 790, 218 Cal. Rptr. 420 (1985). ⁸ 184 Cal. App. 3d 910, 230 Cal. Rptr. 720 (1986). ⁹ See ln re Benjamin D. 227 Cal. App.3d l464,1469-70,278 Cal. Rptr. 468 (1991), and In re Travis C., 233 Cal. App. 3d 492, 284 Cal. Rptr. 469 (1991). ¹⁰ 8 Cal. App. 4th 286, 10 Cal. Rptr. 2d 254 (1992). ¹¹ 199 Cal. App. 3d 183, 244 Cal. Rptr. 490 (1988). ¹² 224 Adv. Cal. App. 3d 1374, 274 Cal. Rptr. 560 (1990) (juvenile court jurisdiction improper where issues litigated were identical to those previously litigated by family law court). In re Lawrence S. was ordered depublished by The California Supreme Court on May 2, 1991; however, The case was subsequently cited in In re Benjamin D. and In re Travis C. For an interesting comment on the unusual procedure of having a depublished opinion cited in a subsequent published opinion, see 1991 Cal. Fam. Law Rpt. 4678 and 1991 Cal. Fam. Law Rpt. 4926­27. ¹³ 6 Cal. App. 4Uh 584, 7 Cal. Rptr.2d 872 (1992). ¹⁴ Cal. App. 25, 5 Cal. Rptr.2d 208 (1992). ¹⁵ 8 Cal. App. 4Uh 286, 10 Cal. Rptr.2d 254 (1992). ¹⁶ JUDGE LEONARD EDWARDS, CALIFORNIA JUVENILE LAWS AND COURT RULES (West, 1992), Introduction, at III. Judge Edwards is the chair of the Juvenile Court Judges of California. ¹⁷ The issue of overlapping subject matter between family law, juvenile, and other courts dealing with children has not gone unnoticed by either the [11egislature or the Judicial Council of California. Recently the [I]egislature mandated a pilot program concerning child victim witnesses which has among its goals developing "special relationships among different courts" when child victim witnesses are involved (Pen. Code bl4002, subd.(c)(2).) See also Report of the Judicial Council Subcommittee on Gender Bias in Courts Evaluation, List of Modified Recommendations, and Comments (1990), Tab 3-Family Law, Recommendation 14, at pages 11­12 (calling for the development of protocols for the coordination of family, juvenile, and other departments "when a child is involved in overlapping proceedings"). In re Benjamin D., 227 Cal.App. 3d 1464, n. 3(1991). ¹⁸ 51 Cal.3d 368, 272 Cal. Rptr. 787 (1990). ¹⁹ Broad Reform of Dependency System Urged, Los Angeles Daily Journal, Mar. 11,1992. ²⁰ See ROBERT L. EMANS, ED.D., ABUSE IN THE NAME OF PROTECTING CHILDREN (VOCAL National Network 1991). The VOCAL (Victims of Child Abuse Laws; National Network is an information link of parents and state and local organizations that offer emotional support, referrals and educational services to families involved with child protection agencies. This group is highly critical of what it terms the quasi­independent investigatory system of child protective agencies and what it calls "the child abuse industry." ²¹ See Corridors of Agony, TIME, Jan. 27, 1992, at 48. Included in that article is the following poignant description of the juvenile courts of this country: Like the 2,500 similar [j]uvenile]ourts across the nation, this is where the battles are being fought against some of America's toughest problems drugs, disintegrating families, household violence. As these problems have grown worse over the past two decades, the judicial system designed to deal with them has crumbled These courts are an indicator of the country's compassion for families and ik commitment to justice, but increasingly they have neither the money nor the personnel to save most of the desperate young souls who pass through their doors. Almost no one seems to care. ²² Psalms 147:2­3. The inspiration for the title of this article came from an insightful book by Rabbi David J. Wolpe, entitled THE HEALER OF SHATTERED HEARTS (1990).

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