John Greacen recently pointed out this very interesting rule that the Idaho Courts have adopted, permitting informal custody trials:
Rule 16(p). Informal Custody Trial.
(1) An Informal Custody Trial is an optional alternative trial procedure that is voluntarily agreed to by the parties, counsel and the court to try child custody and child support issues. The model requires that the application of the Idaho Rules of Evidence and the normal question and answer manner of trial be waived.
Once the waiver is obtained the matter proceeds to trial by consent as follows:
a. The moving party is allowed to speak to the court under oath as to his or her desires as to child custody and child support determination. The party is not questioned by counsel, but may be questioned by the court to develop evidence required by the Idaho Child Support Guidelines and child custody evidence required by Idaho Code § 32-717.
b. The court then asks counsel for that party, if any, if there are any other areas the attorney wants the court to inquire about. If there are any, the court does so.
c. The process is then repeated for the other party.
d. If there is a Guardian ad Litem or other expert, the expert’s report is entered into evidence as the court’s exhibit. If either party desires, the expert is sworn and subjected to questioning by counsel, parties or the court.
e. The parties may present any documents they want the court to consider. The court shall determine what weight, if any, to give each document. The court may order the record to be supplemented.
f. The parties are then offered the opportunity to respond briefly to the comments of the other party.
g. Counsel or self-represented parties are offered the opportunity to make legal argument.
h. At the conclusion of the case, the court will make a decision.
(2) Consent and waiver. The consent to and waiver to the Informal Custody Trial shall be given verbally on the record under oath or in writing on a form adopted by the Supreme Court.
Adopted September 29, 2008.
Note that this is not a special SRL procedure, on the contrary it can be used regardless of the presence of counsel on either side. That makes a lot of sense.
It is not fully clear to me if the waiver of the Rules of Evidence makes objections impossible, or rather than such objections are limited to statutes and the other governing law.
Here are the Waiver and Consent forms used under this rule.
I understand that an evaluation is being done, and will share the results if and when available. An important experiment for which the state should be given high praise.
Thihs is a very interesting experiment in a Turner v. Rogers world. Please keep us informed as it progresses. How many other “informal” procedures are already in place around the country?
Is a judge’s “bias” (predisposition on the merits based on assumptions arising from structural elements of the case, such as gender, income, race) more influential in the outcome in an informal or in a formal proceeding involving two SRLs? What if one party is represented? Do we need special judicial training to prepare a judge for an informal process? At what stage in an informal process does a judge do triage, aborting the process and assigning counsel because one or both of the parties is incompetent to present his or her case/story? Does a SRL do “better” in an informal process involving another SRL than in a formal process? In a system with informal processes available, and judges who are skilled at running them, are there situations in which an SRL should choose the formal process? In the future, will we want SRLs to be able to choose between the informal and the formal, or will that simply add a layer of opportunity for a represented (bundled or unbundled) litigant to take advantage of a less skilled or less well represented litigant?