Family Court Performance Standards and Measures

SJI

State Justice Institute

This document was developed under a grant number SJI-98-N-205 from the State Justice Insitute. The points of view expressed are those of the authors and do not necessarily represent the official position or policies of the State Justice Insitute.

December 1999

Introduction

Today, family courts, like other courts and public organizations funded by tax dollars, increasingly are held accountable for their performance. No longer content to prioritize services based on needs and demands, the public wants assurances of effective services at reasonable costs. The application of court performance standards and measures is a way to assess what the public gets for its money. Almost ten years in the making, the Trial Court Performance Standards (TCPS), published in their final form in July 1997, represent a milestone in the development of concepts, techniques and strategies to examine the performance of courts and the justice system. The TCPS provide a conceptual framework and the operational steps for identifying desired results, creating and tracking measurable indicators of progress toward those results, and assessing court system performance. They represent a new understanding - a new paradigm -- of the role and responsibilities of courts.

The TCPS's initial focus was on general jurisdiction trial courts. This volume, Family Court Performance Standards and Measures, is an adaptation of the TCPS for courts that serve primarily children and families and have jurisdiction over juvenile delinquency, divorce, property division, alimony, domestic violence, child abuse and neglect, adoption, termination of parental rights, as well as paternity, custody, and support proceedings separate from divorce. Although the TCPS have wide applicability across courts of general and limited jurisdiction of many types, family courts are sufficiently different from general jurisdiction trial courts to warrant a separate volume of performance standards and measures for them. For example, the adjudication of family cases generally can be distinguished from that of felonies and general civil cases - with an emphasis on rules of procedure - as well as from traffic cases and small claims - with an emphasis on establishing the facts so that the law can be applied as quickly as possible. Although the rules and procedures in family cases are no less important than in courts of general jurisdiction, adjudication and disposition in family cases require skillful balancing of the equities (e.g., the identification and diagnosis of problems that are the source of the conflict and the protection of the persons before the court, those affected by the decisions, and broader community interests at stake) in administering justice. In performing its role, the family court is a blended court of law and equity, but is no less a court in its requirements of due process.

Organization of This Volume

The organization of this volume follows that of the Trial Court Performances Standards With Commentary, the major volume of the four-part series describing the TCPS.1 The section following this Introduction is divided into five chapters corresponding to five areas of family court performance:

Performance Areas

These five performance areas suggest alternative ways of viewing the fundamental role and responsibilities of courts, such as providing and appearing to provide individual justice in individual cases; resolving disputes; upholding federal and state constitutions; working independently of, but in cooperation with, other branches of government; promoting the rule of law; protecting individuals from the arbitrary use of government power; making a formal record of legal proceedings; and encouraging behavior that adheres to societal norms as expressed in statutes, ordinances and regulations. Within each of the five performance areas, three to six standards describe goals (or major areas of emphasis) for family court performance. Standards in two of the five performance areas - Expedition and Timeliness; and Equality, Fairness and Integrity - emphasize the family court's fundamental dispute resolution functions. The standards in the three performance areas of Access to Justice, Independence and Accountability, and Public Trust and Confidence focus on the functions of family courts as organizations and their relations with other courts, agencies, organizations and the public.

Theoretically, the five performance areas are accorded equal weight and importance. If effective participation and access to justice are denied, for example, it is of little consequence to those affected that a family court potentially performs well in the other four areas. Furthermore, delay in having ones case heard is justice denied even if barriers to access to the court are overcome. But, as an insightful judge said, noting the importance of the area of Equality, Fairness and Integrity, "If the train is not heading where I want to go, I don't care how fast it's going." Finally, a family court system that does not have public trust and confidence has diminished power and legitimacy.

In practice, however, the performance areas are systematically linked, and actions in one will affect another. When a minority group loses its trust and confidence in the court system, and when it believes that it will not be treated fairly and equally, for example, its effective participation and access to justice is limited. Court performance in performance areas may conflict, requiring balance and choice by family court managers and leaders. A public information campaign promoting a court's domestic violence program, for example, may increase access afforded women seeking civil protection orders, but it may also increase the court's caseload, negatively impacting the timeliness and expedition of case processing.

Measures of Performance

The five performance areas, the standards in each of them, and the performance measures (specific indicators of the work performed and results achieved) associated with the standards are presented in a common format. Each performance area (i.e., Access to Justice) first is described in a general introduction (General Commentary) followed by a brief overview of the performance measures associated with the standards in the area (Commentary on Performance Measurement). The commentaries on performance measurement are very brief summaries only of the comprehensive and greatly detailed prescriptions for performance measurement in the Trial Court Performance Standards and Measurement System Implementation Manual.2 The brief summaries that appear in this volume are intended to introduce and refer readers to the detailed measures described in the Trial Court Performance Standards and Measurement System Implementation Manual.

The measurement system employs numerous data gathering methods and taps diverse data sources. Included are familiar methods, such as court and case records reviews and tallies of case filings and dispositions, as well as other social science techniques less familiar to family courts, such as systematic observation, simulations, surveys of various reference groups, and group techniques. Different "evaluators" and data collectors are prescribed depending on the object or subject of the measure. Trained volunteers, for example, are recommended for conducting structured observations of court proceedings and simulations of public access to court information, while court staff are recommended for taking measures involving record reviews. Each of the 68 measures is described in easy-to-understand language - including an overview that describes the measure's purpose and how it aligns with the standard and performance area, planning and preparations for taking the measure, data collection procedures and forms, data analysis and reporting, and references to other resources - to allow court practitioners to arrange the specific performance measurement with little no professional research assistance. A table summarizing each measure and the primary data collection methods and techniques, primary evaluators, and the subject or source of the data associated with each measure is included in Appendix A.

Standards and Commentaries

In each performance area, succinct statements -"black letter" standards - describe the required performances in the area. Each of the 22 standards across the five areas of performance is followed by commentary which explains and clarifies it, first in general terms and then in the context of the perspectives and experiences of the Family Court of the State of Delaware. These commentaries explain not only the expected results and outcomes identified by the standards but suggest possible inputs - human, financial and facility resources, strategies and methods -- linked to the these results and outcomes by Delaware's Family Court. These inputs are a rich source of possible practices from which other family courts can draw.

The Family Court Standards Project

The Family Court of the State of Delaware (hereinafter "Family Court") was established as a statewide family court in 1971. Like most family courts throughout the Nation, it faces today burgeoning caseloads, complex and often-conflicting mandates and demands, and stagnant resources. To be effective, the Family Court's leaders and managers - together with their justice system partners and the communities they serve - knew that they must strategically plan, manage and position the Family Court in an ever-changing, often inhospitable environment. They recognized that they must have a long-term vision and a hierarchy of worthy goals, communicate a sense of mission and shared values, and measure performance vigorously.

Beginning in 1998, with support of the State Justice Institute, the Family Court used the TCPS to anchor a process of strategic planning including: (1) a shaping of a vision, a set of values, and a sense of mission - the guiding ideas to organize and mobilize the Family Court; (2) the identification of goals consistent with those guiding ideas; (3) the formulation of a set of strategies to achieve the goals; and, (4) the initiation of monitoring and measuring of the Court's performances. At the same time, in view of a quarter-century of experiences - both successes and failures - the Family Court undertook a project of self-assessment. Committees were created by administrative directives of the Chief Justice of the Delaware Supreme Court, the Chief Judge of the Family Court, and two significant grant projects. The individual work of each committee was considered in tandem and synthesized with the Family Court Standards Project.

The Family Court regards the views and perspectives of the various internal and external users of the Family Court as essential to substantive change. Consequently, each committee of the Family Court Standards Project included a broad range of participants from judges to litigants, lawyers to clerks, and cabinet secretaries to private citizens. The scope of review included existing local standards in statutes, rules, administrative directives, and national publications. The result, the Family Court Performance Standards and Measures, is both aspirational and practical. A critical stage in the development and coordination of this volume was a two-day retreat in which each performance area was dissected, analyzed, and reconstructed. The performance standards in this volume ultimately were approved at a full-day meeting of the Family Court judges.

Designed to address the immediate concerns of Family Court judges and court staff, the performance standards and measures in this volume have a broader audience with its own concerns. Legislators seek answers to questions posed by their constituents. Executive branch managers look for ways to assess the need for additional judges and staff. Attorneys need to know the expectations of the Family Court in order to provide quality representation of their clients. The litigants themselves, especially self-represented persons, need clear direction and reasonable answers to the numerous questions that they may have as they encounter the often-confusing requirements of the legal system. Perhaps most importantly, the children affected by the proceedings and decisions of the Family Court deserve the highest quality of care and service that a court can provide.

Finally, the Family Court Standards Project has a larger purpose that reaches beyond the Family Court and the State of Delaware. The TCPS were developed for general jurisdiction trial courts and received the endorsements of major judicial organizations. Their applicability to family courts seemed promising but remained to be demonstrated. The Family Court adapted and adopted the TCPS not only to serve its own needs and those of its constituencies in Delaware but also to provide a model for use by family courts throughout the Nation. This volume, Family Court Performance Standards and Measures, is the product of this effort.

Performance Standards

With Commentary

Access to Justice

General Commentary

Family courts should be open and accessible. Location, physical structure, procedures, and the responsiveness of family court personnel affect accessibility. Accordingly, the five standards grouped under Access to Justice require a family court to eliminate unnecessary barriers to its services. Such barriers can be geographic, economic, and procedural. They can be caused by deficiencies in both language and knowledge of individuals participating in court proceedings. Additionally, psychological barriers can be created by mysterious, remote, unduly complicated, and intimidating court procedures. Although not unique to domestic relations and juvenile law, the high percentage of self-represented litigants filing and defending their own suits poses formidable challenges for a family court as well as the represented and self-represented litigant. In many ways Access to Justice is the key area for family courts in developing and assessing their policies and practices related to litigants without lawyers.

The intent of the first two standards is to bring the administration of justice into the open and to make it accessible. Standard 1.1 requires the family court to conduct its business openly. To ensure that all persons with legitimate business before the court have access to its proceedings, Standard 1.2 requires the family court to make its facilities safe, accessible, and convenient to use. Accessibility is required not only for those who are guided by an attorney but also for all litigants, victims, witnesses, and relatives of litigants. Access to family courts also is required for many other individuals - for example, parents and guardians in juvenile cases, persons seeking information from public records held by the court, employees of agencies that regularly do business with the courts (mental health professionals, law enforcement officers, defenders and prosecutors, "children" departments employees, department of corrections guards and probation officers), and the public.

Because a family court may be accessible to most and still hinder access to many, Standard 1.3 requires the court to provide opportunities for the effective and appropriate participation of all who appear before the court, including young children, litigants without lawyers, and persons with linguistic difficulties or handicaps. To promote access to justice and to enhance citizen confidence and trust in the court, Standard 1.4 urges that all court personnel accord respect, courtesy, and dignity to all with whom they come into contact. Finally, Standard 1.5 recognizes that there are financial and procedural barriers to access to justice. It requires that the fees imposed and procedures established by the court be fair and reasonable. Recognizing the importance of the relationship between public records and access to justice, the standard also requires that public records be preserved and made available at a reasonable cost.

Commentary on Performance Measurement

The Trial Court Performance Standards and Measurement System Implementation Manual prescribes 21 performance measures associated with the five standards in the area of Access to Justice (see Appendix A). Taken together these measures provide both breadth and depth of measurement of a court's performance in providing public access to justice.

The measures in this performance area rely on a variety of data collection methods: surveys, observations (in some measures combined with simulation), interviews, and reviews of court records and documents. Three measures call for administering surveys to individuals who are "regular users of the courthouse." The information sought from these people relates to safety and security, ease of doing "business" with the court, and the courtesy and respect they experience in the courthouse. Although each survey measure is described separately in relation to a particular standard, it may be easier and less time consuming to combine the questions for each measure into one questionnaire and survey regular users once rather than three times.

The method described most often for measuring access to justice is observation (sometimes combined with simulation). Observers systematically record what they see and hear. This structured information can then be examined quantitatively as well as qualitatively. These "see, hear, and record" measures range from concrete and objective (Was an observer able to gain entrance to a courtroom?) to subjective (Did activity taking place in a courtroom detract from the dignity of the proceedings?). There are 12 measures of this type. Although the observations could be carried out by almost anyone, the recommended approach is to use citizen volunteers who are relatively naïve to the legal system and who are unfamiliar with the facilities and "customs" of the courthouse. This results in records of experiences that resemble those of ordinary citizens who have infrequent occasion to do business with the court. Furthermore, the observers chosen should optimally be representative of the jurisdictional community of the family court. Representativeness is more important for some measures than others. However, because the same individuals could be asked to obtain data for all the observation measures, it may be helpful to recruit one pool of observers who vary on demographic factors. Observers may be recruited by contacting volunteer organizations, universities, senior citizen groups, and so forth.

This "volunteer observer" method has other advantages, notably its relatively low cost. The family court must invest staff time to recruit volunteers, orient them to their assignments, and evaluate results. Once the recruitment and orientation are completed, however, the observers may be used to collect data for many measures described throughout the measurement process. Because the observers are relatively few in number, they offer the added advantage of being able to provide court staff with additional information during interviews following their structured assignments. A much richer, qualitative analysis results when explanations, descriptions, and suggestions can be elicited from the observers to augment what is provided on written forms, questionnaires, and checklists.

Two other measurement methods rely on data collected through interviews and examination of court records and written policy documents. Some of the measures of this type focus on case data. Measure 1.3.1, regarding effective legal representation of children in child abuse and neglect proceedings, is of this type. In this measure, court case records are examined and those involved in the cases are surveyed and interviewed to document how the guardian ad litem process actually has worked for several selected cases. Other measures focus on administrative documents. For example, Measure 1.5.1 relies on an examination of forms, brochures, and written policies to evaluate court efforts to facilitate affordable access alternatives for individuals with lowincomes. Interviews with court staff also are conducted to identify and locate the relevant documents. Finally, measures addressing the issues of court security (Measure 1.2.1) and interpreter services (Measure 1.3.2) rely on evaluation by outside experts in the respective areas.

Standard 1.1 Public Proceedings

The family court conducts its trials, hearings and other public business openly except as prohibited by law.

Commentary

This standard requires the family court to conduct all trials and hearings openly unless prohibited by law. The family court must specify those proceedings to which the public is denied access and ensure that the restriction is in accordance with the law and reasonable public expectations. Further, the court must ensure that its trials and hearings are accessible and audible to all participants, including litigants, attorneys, court personnel, and other persons in the courtroom.

Notwithstanding the first clause of Section 9 of Article I of the Delaware Constitution, which reads "All courts shall be open," the Delaware General Assembly determined that some aspects of Family Court should not generally be open to public scrutiny. Thus hearings, interviews of children and investigative reports in custody matters are private, as are all matters involving termination of parental rights, adoption, and divorce proceedings. Some of these restrictions recently were challenged as unnecessary. The traditional view that family court matters should be private is yielding to a realization that the purposes supporting this view may no longer be valid. The General Assembly, as a result of House Joint Resolution 4, effective July 16, 1997, called upon the Family Court to open more court proceedings to the extent permitted by law and to study the effects of such opening. Pursuant to that legislative directive, the Family Court has increased the opportunities for the general public to gain access to trials and hearings.

The Family Court is considering several initiatives:

Standard 1.2 Safety, Accessibility, and Convenience

Family court facilities are safe, accessible, and convenient to use.

Commentary

Standard 1.2 considers three distinct aspects of court performance: the security of persons and property within the courthouse and its facilities, access to the courthouse and its facilities, and the reasonable convenience and accommodation of those who use or come to the court. A family court must be concerned about matters such as the centrality of its location in the community it serves, adequate parking, reasonable accommodation of children and families, the availability of public transportation, the degree to which the design of the court provides a secure setting, and the internal layout of court buildings (e.g., the signs that guide visitors to key locations).

Standard 1.2 pertains to the conduct of court personnel as well. The behavior of court personnel impacts convenience, safety and accessibility (see Standard 1.4). Unusual or unexpected conditions, such as bomb threats, mass arrests, and natural disasters, challenge the routine operations of the court. Mechanisms, such as a natural disaster plan, should be developed to handle unexpected or unusual situations that could impede the court and disrupt daily routines.

Statistics support the conclusion that more violence occurs in a domestic relations court due to the emotional turmoilin which people find themselves. The importance of security in such a court can not be overstated. It has been Delaware's experience that "block" scheduling (requiring many people to appear at one time) overcrowds waiting areas and other public areas unnecessarily which, in turn, creates an atmosphere of confusion and uncertainty that may further agitate already emotionally distraught litigant. In response, the Family Court has begun to refine scheduling in a way that will better distribute the litigants, both by time and by area, and is pursuing the enhancement of its security force.

Accessibility and convenience are integrally related to Expedition and Timeliness. The nature of family law requires timeliness if access is to be meaningful. Unsophisticated scheduling is inconvenient to the litigant if he or she is made to wait unnecessarily to have his or her problem addressed. Anticipating that many individuals who come to a family court are caretakers of small children, as well as children who are the subject of litigation, the Family Court is considering creation of "child friendly" spaces. In addition, the Family Court is considering or has implemented the following:

Standard 1.3 Effective Participation

The family court gives all who appear before it the opportunity to participate effectively, without undue hardship or inconvenience.

Commentary

Standard 1.3 focuses on how a family court accommodates all participants in its proceedings - especially the self-represented litigant and those who have language difficulties, mental impairments, or physical handicaps. Accommodations for the self-represented litigant include providing sufficient information. Such accommodations might include the following: the use of clear language forms, instructions on completing all necessary forms, service centers for the self-represented, a directory of lawyers, space for attorneys to provide preliminary assistance, or a combination thereof in a way that will permit the litigant to properly file a clearly worded petition, or response thereto. Accommodations for the impaired or handicapped include providing interpreters for the deaf and special courtroom arrangements or equipment for blind and speech-impaired litigants. For non-English speaking litigants, accommodations include provision of interpreters, and a phone system that is responsive to non-English speaking callers.

In a snapshot of civil cases (excluding child support) taken by the Family Court in 1999, 74 percent of the cases involved self-represented litigants. As the number of litigants who represent themselves increases, the challenge of effective participation of self-represented litigants will need to be met by additional resources. Although the Family Court has created some self-represented "litigant friendly" petitions, the Court has not met this challenge comprehensively. Recently, however, the Family Court has developed a Web site designed to be user friendly, sent representatives to study an out of state court facility that has successfully created a self-represented litigant service center, employed a Director of Self-Represented Programs who has begun to design and develop "access centers" (see Commentary Standard 1.2), and has begun a review of a limited category of forms with a view towards making them very user friendly. In addition, the Court is considering or has implemented:

Standard 1.4 Courtesy, Responsiveness, and Respect

Judges and other family court personnel are courteous and responsive to the public, and accord respect to all with whom they come into contact.

Commentary

The intent of Standard 1.4 is to make the justice system more accommodating and less intimidating. A responsive family court ensures that judicial officers and other court employees are available to meet both the routine and the exceptional needs of those it serves. Requirements of the standard are particularly important in the understanding shown and assistance offered by court personnel to members of minority or disadvantaged groups and to those unfamiliar with the family court and its procedures. In keeping with the public trust embodied in their positions, judicial officers and other court employees should reflect by their conduct the law's respect for the dignity and value of all individuals who come before, or make inquiries of, the court. No court employee should by words or conduct demonstrate bias or prejudice based on race, religion, ethnicity, gender, sexual orientation, color, age, handicap, political affiliation, or level of education. These requirements extend to the manner in which the employees of the court treat each other.

The volume and emotional nature of cases in the Family Court cause stress for judicial officers and other court personnel, stress that often is associated with anxiety, frustration, low morale, and a diminished capacity to meet the requirements of Standard 1.4. In response to the problem, the Family Court began a courtroom monitoring "Court Watch" program in 1999 in which trained observers - University of Delaware graduate students -- provide written feedback on the performance of judicial officers and courtroom personnel in domestic violence and related proceedings. Initiated as a limited pilot program, the results of the program will be evaluated and, if justified, expanded. In addition, since 1995 members of the private and public bar evaluate all Family Court commissioners on their legal ability, judicial management, and comportment. Recently all non-judicial personnel of the Family Court attended "customer" service training. Other initiatives considered or implemented include:

Standard 1.5 Affordable Costs of Access

The costs of access to family court proceedings and records -- whether measured in terms of money, time, or the procedures that must be followed - are reasonable, fair, and affordable.

Commentary

Litigants and others who use the services of the family court (e.g., nonlitigants who require records kept by the courts)face three main financial barriers to effective access to the family court: court fees, third-party expenses (e.g., deposition costs and expert witness fees), and lawyer fees. Standard 1.5 requires that the family court minimize its own fees for access and participation in its proceedings and, where possible, scale its procedures and those of others under its influence or control to the reasonable requirements of matters before the court. Means to achieve this include simplification of procedures and reduction of paperwork in uncontested matters, the use of volunteer lawyers to do pro bono work, simplified pretrial procedures, and establishment of appropriate alternatives for resolving disputes (e.g., referral services for cases that may be resolved by mediation, court-annexed arbitration, early neutral evaluation, tentative ruling procedures, or special settlement conferences).

Although a family court may control its own fees more readily, it can reduce the overall cost of litigation by, for example, conducting telephone conferences in lieu of in-person conferences and by making it easier for citizens to handle uncontested matters (e.g., name changes, stepparent adoptions, or uncontested divorces) without legal representation. As a general rule, simple disputes should be resolved at low cost and by uncomplicated procedures. Procedural accessibility should be enhanced by clear, concise, and understandable language in instructing the parties, witnesses, and others about rights, responsibilities, necessary forms, hearings, and court facilities and resources.

Family courts possess the record of their own public proceedings as well as important documents generated by others (e.g., police records and paternity testing results). These records must be available to individuals who are authorized to receive them. Standard 1.5 requires that the court maintain a reasonable balance between its actual costs in providing documents or information and what it charges users.

A litigant who has insufficient money to pay filing fees or hire an attorney may feel that he or she has been denied access to justice. In addition to filings and proceedings in forma pauparis (i.e., allowing poor litigants to proceed without payment of court fees or costs), the Family Court permits "fee waivers" that excuse or defer payment of filing fees, upon a showing of imminent need. The vast majority of litigants in Family Court do not meet the poverty-level criterion of indigence to proceed in forma pauperis yet find the court costs and fees burdensome. In response to this problem, the Family Court is considering or implementing the following initiatives:

Expedition and Timeliness

General Commentary

Family courts are entrusted with many duties and responsibilities that affect individuals, families, and organizations involved with the judicial system, including litigants, attorneys, witnesses, criminal justice agencies, social service agencies, and members of the public. The repercussions from untimely court actions in any of these involvements can have serious consequences for the persons directly concerned, the court, allied agencies, and the community at large.

A family court should meet its responsibilities to everyone affected by its actions and activities in a timely and expeditious manner -- one that does not cause delay. Unnecessary delay causes injustice and hardship. It is a primary cause of diminished public trust and confidence in the court.

Defining delay requires distinguishing between the amount of time that is and is not acceptable for case processing. National and statewide authorities have articulated time standards for case disposition. These standards call for case processing time to be measured beginning with arrest or issuance of a summons in a criminal case, or from the date of filing in a civil case.

The three performance standards under Expedition and Timeliness draw attention not only to the prompt resolution of cases, a requirement expressed by Standard 2.1, but also to the expectation that all family court functions will be expeditiously performed, a requirement of Standard 2.2. Standard 2.3 emphasizes the importance of expedition and timeliness in anticipating, adapting to, and implementing changes in law and procedure.

Commentary on Performance Measurement

The ten measures for this area's three standards assess how promptly the court processes cases, files required reports, and implements new legal and procedural changes. Because of the diversity of activity examined under the three standards, a wide range of measurement techniques is employed. Yet, in many cases, data collection can be coordinated with other measures and many of the measures associated with Standard 2.1 will be familiar to judges and court managers.

Information from individual case files or automated records is required to complete most measures for Standard 2.1. For example, calculating the time to disposition and the age of pending cases requires access to case status and the dates of key events. Information on the number of times a case was set for trial is needed to determine the certainty of trial dates in the progression of cases through the system. To measure compliance with Standard 2.2, a variety of records maintained by the court are compared with recognized filing requirements. Patterns of completeness must also be evidenced as a condition of meeting these measures. Financial records, records of court-initiated services (e.g., court-appointed counsel, and interpreters) and required statistical reports are considered. Recognizing that not all information flows through written channels, a simulation of an information request provides an opportunity for the court to assess how quickly and accurately it responds to information requests from the public.

The court must not only promptly disburse information when it is requested, it must also promptly conform its operation to meet new requirements of law or procedure. Two measures for Standard 2.3 provide opportunities for reviewing records or interviewing individuals affected by these changes in order to assess the court's pattern of adopting changes based on new requirements.

Standard 2.1 Case Processing

The family court establishes and complies with recognized guidelines for timely case processing while, at the same time, keeping current with its incoming caseload.

Commentary

The American Bar Association, the National Council of Juvenile and Family Court Judges, the Conference of Chief Justices, the Conference of State Court Administrators, and various state judicial authorities have urged the adoption of time standards or guidelines for expeditious caseflow management. Timely disposition is defined in terms of the elapsed time a case requires for consideration by a court, including the time reasonably required for pleadings, discovery, and other court events. Any time beyond that necessary to prepare and conclude a case constitutes delay. Standard 2.1 first requires a family court either to adopt (or adapt) existing standards or guidelines for timely case processing or to formulate its own.

The requirement of timely case processing applies to trial, pretrial, and posttrial events. The court must control the time from civil case filing or criminal arrest to trial or other final disposition. Early and continuous control establishes judicial responsibility for timely disposition, identifies cases that can be settled, eliminates delay, and ensures that matters will be heard when scheduled. Court control of the trial itself will reduce delay and inconvenience to the parties, witnesses, and family members. During and following a trial, the court must make decisions in a timely manner. Finally, ancillary and postjudgment or postdecree matters need to be handled expeditiously to minimize uncertainty and inconvenience.

In addition to requiring courts to comply with recognized guidelines for timely case processing, Standard 2.1 urges courts to manage their caseloads to avoid backlog. This may be accomplished, for example, by terminating inactive cases and resolving as many cases as are filed.

The Delaware Family Court approached this standard first by subdividing case processing into judicial and staff functions. Using focus groups of judges, administrators, court staff, and other court users, the Family Court Standards Project identified benchmarks and targets of time for each stage in the life of a case. These benchmarks and targets simultaneously reflect the needs of the litigants, especially the children, for timeliness, constitutional and due process requirements, and available resources in setting goals for case processing. Setting time standards for each stage of a case gives litigants a sense of forward action on their filings, permits the court to determine the resources required to meet the goal, and provides a measurable aspect to the largely immeasurable concept of justice.

In a family court where self-represented litigants, inexperienced in the legal process, initiate and defend up to three-quarters of the caseload, established time standards are helpful in giving the parties a framework for their case and an expectation of when their situation will be addressed. Although each family case is unique, the cumulative data can provide averages upon which the family court can plan calendars and acquisition of resources.

Case Prioritization - Timely case processing of family court cases differ from courts of general jurisdiction as each casetype has a different level of urgency associated with it. The Delaware Family Court prioritizes its caseload focusing on constitutional requirements, children-at-risk, and other civil matters. Highest priority is given to children who have "no one" -those who are dependent, neglected, or abused and are reliant upon the State for care and protection. Closely following the dependent child are those children whose parents are not providing for them and cases where a relative or private citizen seeks custody or guardianship. Custody and visitation cases involve at least one parent wishing to take care of their child. Other civil matters, such as property division are lower in priority as they have a less direct effect on the children. Domestic Violence poses safety threats for abused persons and their children. Consequently, civil and criminal domestic violence cases have a thirty-day timeframe for resolution. Criminal defendants have a constitutional right to a speedy trial.

Processing Prior To Judicial Assignment - Family court cases involve additional processing steps prior to judicial scheduling. Prefiling assistance to self-represented litigants, Alternative Dispute Resolution (ADR) sessions, parent education requirements, and various required social reports add complexity to monitoring case processing timeframes. The Family Court's Courting Quality workgroup suggested a "15 minute rule" that could be applied to many of the early stages of case processing. Litigants should receive personal attention from court staff within 15 minutes. Similarly, intake assistance, filing time, cashier time, and waiting time before a hearing may all fit into this quarter-hour requirement. Specific time standards, and action steps for cases not meeting the standard, were developed for service of process, scheduling of mediation and arbitration, and completion of the parent education requirements.

Judicial Case Management - Using a live modified Delphi technique, the Internal Operating Procedures Committee recommended guidelines for each case type in the Family Court jurisdiction: (1) time from assignment to designating a trial date; (2) time from assignment to the actual trial date; and (3) time from trial to issuance of the order. Additionally, average recommended times for each hearing were proposed for each type of case.

Standard 2.2 Compliance With Schedules

The family court disburses funds promptly, provides reports and information according to required schedules, and responds to requests for information and other services on an established schedule that assures their effective use.

Commentary

As public institutions, family courts have a responsibility to provide information and services to those they serve. Standard 2.2 requires that this be done in a timely and expeditious manner. The source of the information requests may be internal or external to the court. Services provided to those within the court's jurisdiction may include legal representation or mental health evaluation for criminal defendants, protective or social services for abused children, and translation services for some litigants and witnesses.

In addition to adhering to case processing time guidelines, an effective family court establishes and abides by schedules and guidelines for activities not directly related to case management. Moreover, the court meets reasonable time schedules set by those outside the court for filing reports or providing other information stemming from court activities. When disbursement of funds is necessary, payment is made promptly. Standard 2.2 requires that regardless of who determines the schedules, once established, those schedules are met.

Timely disbursement of funds held or controlled by the court is particularly important. Fines, fees, restitution, child support payments, and bonds are categories of moneys that pass through the court to their lawful recipients. Depending on the category involved and the laws of a given jurisdiction, the recipients may include funding agencies (e.g., State, county, or city), public agencies (e.g., police academies and corrections boards), and individuals (e.g., litigants or victims). In addition, courts oversee disbursement of funds from their budgets. These funds go to other branches and units of government, vendors, litigants, or witnesses. For some recipients, delayed receipt of funds may be an accounting inconvenience; for others, it may create personal hardships. Regardless of who the recipient is, when a family court is responsible for the disbursement of funds, expeditious and timely performance is crucial.

Standard 2.3 Prompt Implementation of Law and Procedure

The family court promptly implements changes in law and procedure.

Commentary

Tradition and formality can obscure the reality that both the law and procedures affecting court operations are subject to change. Changes in statutes, case law, and court rules affect what is done in the courts, how it is done, and those who conduct business in the courts. Family courts must make certain that mandated changes are implemented promptly and correctly. Whether a change can be anticipated and planned or must be responded to quickly, Standard 2.3 requires that the court not only make its own personnel aware of the changes but also notify court users of such changes to the extent practicable. It is imperative that changes mandated by statute, case law, or court rules be integrated into court operations as they become effective. Failure to do so leaves the court open to criticism for noncompliance with the law or required procedures.

The area of family law is subject to rapid change in statutes, case law, federal regulations, and local court rules to meet the changing needs of the litigants and children. Family courts need to monitor proposed and pending legislation to assess impact and to submit statements on required resources. In order to prepare to implement changes in case law, courts must receive, analyze, and distribute appellate court decisions to the judges and other appropriate court personnel in a timely manner. Changes to local court rules should have an implementation schedule considered during the development of the modified rules. The Family Court addressed this standard by setting time frames for identifying and distributing appellate court opinions dealing with Family Court issues. A legislative tracking system was implemented for a next-day review of all introduced, passed, and signed legislation affecting Family Court. Impact statements identifying implementation problems, responsibilities, and required resources are developed for all pending bills. Signed legislation is distributed with an accompanying memorandum explaining the method and time for implementing the changes.

Equality, Fairness, and Integrity

General Commentary

Family courts should provide due process and equal protection of the law to all who have business before them, as guaranteed by the U.S. Constitution and State constitutions. Equality and fairness demand equal justice under law. These fundamental constitutional principles have particular significance for groups who may have suffered bias or prejudice based on race, religion, ethnicity, gender, sexual orientation, color, age, handicap, or political affiliation.

Integrity should characterize the nature and substance of family court procedures and decisions, and the consequences of those decisions. The decisions and actions of a family court should adhere to the duties and obligations imposed on the court by relevant law as well as administrative rules, policies, and ethical and professional standards. What the family court does and how it does it should be governed by a court's legal and administrative obligations; similarly, what occurs as a result of the court's decisions should be consistent with those decisions.

Integrity refers not only to the lawfulness of court actions (e.g., compliance with constitutional rights, legal representation, and a record of legal proceeding) but also to the results or consequences of its orders. A family court's performance is diminished when, for example, its mechanisms and procedures for enforcing its child support orders are ineffective or nonexistent. Performance also is diminished when summonses and orders for payment of fines or restitution are routinely ignored. The court's authority and its orders should guide the actions of those under its jurisdiction both before and after a case is resolved.

The demand for equality, fairness, and integrity is articulated by five performance standards. The first standard encompasses the all-important legal concept of due process and requires that trial courts adhere to relevant law, rules, and policy when acting in their judicial and administrative capacities. Standard 3.2 focuses on what many consider to be the essence of justice. The standard requires that the decisions and actions of family courts be based on legally relevant factors consistently applied in all cases. Furthermore, those decisions and actions should be based on individual attention to each case. In accordance with the call for integrity in court performance, Standard 3.3 urges family courts to render decisions that clearly state the issues addressed and specify how compliance with their decisions can be achieved. Clarity is a prerequisite for both compliance and enforcement.

Standard 3.4 encourages family courts to assume responsibility for the enforcement of their orders. Finally, Standard 3.5 requires the prompt and accurate preservation of family court records. Records of court decisions and the process followed to arrive at decisions constitute, in an important sense, the law. Both the accuracy of the records and reliable access to them are fundamental to the achievement of the purposes of family courts.

Commentary on Performance Measurement

Twenty specific measures are associated with the five standards in Performance Area 3, Equality, Fairness, and Integrity. They are intended to provide systematic information on the many facets of this complex and important topic. For most of the individual standards, the measures use similar data elements, data gathering procedures, and methods of analysis. For example, Standard 3.5, Production and Preservation of Records, requires that family court records of all relevant court decisions are accurate and properly preserved. For five of the six measures associated with this standard (see Appendix A), a common database is used to assess the integrity of the court's record management systems. The measures use some portion of the same pool of cases to examine the extent to which court records are adequately stored. Use of a joint database is called for in other standards, including Standard 3.2, which requires trial courts to "give cases individual attention, deciding them without undue disparity among like cases and only upon legally relevant factors." Measure 3.3.3, Equality and Fairness in Sentencing, and Measure 3.3.4, Equality and Fairness in Bail Decisions, rely on the same set of cases and the same methodological approach to determine whether legally irrelevant factors play a role in bail and sentencing decisions. Hence, a court that decides to undertake the measurement of a given standard will find that it can apply all of the measures within that standard in an efficient manner.

The most common approach to all of the measures in this performance area is the analysis of case-related information. Case files are used as a primary source of data for many of the measures. In some instances, the information in the files is gathered and analyzed to assess the fairness of court decisions in areas such as bail and sentencing. On the other hand, case-related information is also used in Standard 3.1 to determine the extent to which the court adheres to laws and procedures. Standard 3.1 states that "Trial courts faithfully adhere to procedural rules, and established policies." Here the case-related information is used as a way to verify compliance with laws.

The second most common approach is the use of mail questionnaires to assess the views of key participants in the court process. Different measures target different sets of respondents. For example, Measure 3.3.3 seeks to determine both court employees' and attorneys' assessment of court performance in applying the law. Measure 3.3.1 targets the bar's view of the fairness of court decisions and actions. Measure 3.3.2 surveys the opinions of court users. Measure 3.6.6 examines the views of attorneys toward the adequacy of the court record when cases are appealed.

Standard 3.1 Fair and Reliable Judicial Process

Family court procedures faithfully adhere to relevant laws, procedural rules, and established policies.

Commentary

This first standard in the performance area of Equality, Fairness, and Integrity draws on the concept of due process, including notice and a fair opportunity to be informed and heard at all stages of the judicial process. Fairness should characterize the court's compulsory process and discovery. Family courts should respect the rights to legal counsel and the rights of self-representation, confrontation, cross-examination, and impartial hearings. Standard 3.1 requires fair judicial processes through adherence to constitutional and statutory law, case precedent, court rules, and other authoritative guidelines, including policies and administrative regulations. Adherence to established law and procedures contributes to the court's ability to achieve predictability, reliability, and integrity, and to satisfy all parties. Because of its centrality to the court's purpose, Standard 3.1 overlaps with standards in the performance areas of Access to Justice and Public Trust and Confidence, which emphasize that justice should be "perceived to have been done" by those who directly experience the quality of the family court's processes and procedures.

In creating a unified family court, the distinction between formal adherence and essential fairness must be recognized. Strict formal compliance with traditional rules and procedures found in courts of general jurisdiction can frustrate the social service function inherent to the family court jurisdiction. Accordingly, family court rules and procedures, while providing clear and understandable direction, must also provide each litigant the opportunity to meaningfully participate in shaping outcomes which address the unique and complex needs of dysfunctional families and disadvantaged persons.

The unique social function of the Family Court of the State of Delaware emanates from its enabling legislation which mandates that:

The Court shall endeavor to provide for each person coming under its jurisdiction such control, care and treatment as will best serve the interests of the public, the family, and the offender, to the end that the home will, if possible, remain unbroken and the family members will recognize and discharge their legal and moral responsibilities to the public and to one another.10 Del. C. § 902(a) (1974).

The Family Court has made a concerted effort to shift from a court with dual roles as a court and a social service agency to a court with a "social conscience."

The Family Court's efforts to establish and maintain a fair and reliable judicial process, while adhering to this unique mission, include the following initiatives:

Standard 3.2 Court Decisions and Actions

Family courts give individual attention to cases, deciding them without undue disparity among like cases and upon legally relevant factors.

Commentary

Standard 3.2 requires that litigants receive individual attention without variation due to judge assignment or other legally irrelevant characteristics of the parties, such as race, religion, ethnicity, gender, sexual orientation, color, age, handicap, or political affiliation. Generally, persons similarly situated (e.g., juvenile defendants faced with or found guilty of similar offenses and having similar criminal histories) should receive similar treatment. The standard further requires that court decisions and actions be in proper proportion to the nature and magnitude of the case and to the characteristics of the parties. Variations should not be predictable on the basis of legally irrelevant factors, nor should the outcome of a case depend on which judge within a court presides over a hearing or trial. The standard refers to all decisions, including sentences in criminal cases, the conditions of bail, the amount of child support ordered, the appointment of legal counsel, and court-supervised alternatives to formal litigation.

Much of the litigation brought before a family court has the potential for spanning many years over the length of the minority of children's' lives or the duration of relationships. Assignment of multiple decision-makers to individual families risks not only consistency in decisions, but unnecessary disruption to children. An emerging trend in family courts throughout the country aimed at consistency in decision making is a one-family/one-judge model. Individualized assignment leads to the development of specialized knowledge resulting in more efficient and meaningful justice. However, the reality of overwhelming volume and diversity of case types of a unified family court necessitates the utilization of alternative methods of case disposition such as Alternative Dispute Resolution Programs (ADR) and intermediate-level hearing officers (commissioners, masters). While somewhat of a departure from a one family/one judge case assignment, these alternative methods of case resolution can advance the ideal of consistency among cases through subject matter specialization. Key to ensuring specialized knowledge among various judicial officers is an information system capable of providing case specifics as necessary. Also, diversion of cases frees the judges of the court to concentrate on those matters of greatest importance. Accordingly, in the family court setting, the number and diversity of methods of case resolution requires that the court promote consistency in dispositions through the development of substantive guidelines.

The Family Court of the State of Delaware has made progress toward conformity with Standard 3.2 through initiatives such as:

Standard 3.3 Clarity

The family court renders decisions that unambiguously address the issues presented to it and clearly indicates how compliance can be achieved.

Commentary

An order or decision that sets forth consequences or articulates rights but fails to tie the actual consequences resulting from the decision to the antecedent issues breaks the connection required for reliable review and enforcement. A decision that is not clearly communicated poses problems for the parties, agencies, and for judicial officers who may be called upon to interpret or apply it.

Standard 3.3 requires that it be clear how compliance with court orders and judgments is to be achieved. Dispositions for each charge or count in a criminal complaint, for example, should be easy to discern, and terms of punishment and sentence should be associated clearly with each count upon which a conviction is returned. Noncompliance with court pronouncements and subsequent difficulties of enforcement sometimes occur because orders are not stated in terms that are readily understood and capable of being monitored. An order that requires a minimum payment per month on a restitution obligation, for example, is clearer and more enforceable than an order that establishes an obligation but sets no time frame for completion. Decisions in civil cases, especially those unraveling tangled webs of multiple claims and parties, also should connect clearly each issue and its consequences.

Family court orders must often endure until a child reaches the age of majority or for the length of a relationship. Voluntary compliance is essential to the smooth running of the court. A significant number of the litigants are unrepresented and are uninformed as to court processes, and procedures, and fail to recognize the consequences of orders. The issues are complex, highly personal and often involve the safety and welfare of persons in significant peril, especially children. Family court orders will be read and interpreted by a multitude of individuals from the litigants to social workers to police officers called upon in the middle of the night to enforce the order of the court. For these reasons, and others, clarity of family court orders is of paramount importance.

The Family Court has developed and utilizes standardized forms of order in most areas of the Court's jurisdiction. Further, the Special Committee on Family Court Internal Operating Procedures, recognizing that the order effectiveness could be enhanced by appropriate forms of order, set forth the following recommendations:

Standard 3.4 Responsibility for Enforcement

The family court takes responsibility for the enforcement of its orders.

Commentary

Courts should not direct that certain actions be taken or be prohibited and then allow those bound by their orders to honor them more in the breach than in the observance. Standard 3.4 requires a family court to ensure that its orders are enforced. The integrity of the dispute resolution process is reflected in the degree to which parties adhere to awards and settlements arising out of them. Noncompliance may indicate miscommunication, misunderstanding, misrepresentation, or lack of respect for or confidence in the courts.

Obviously, a family court cannot assume direct and sole responsibility for the enforcement of all of its decisions and orders. Court responsibility for enforcement and compliance varies from jurisdiction to jurisdiction, program to program, case to case, and event to event. More often than not, responsibility is shared with one or more government departments or agencies. It is common and proper in some civil matters for a family court to remain passive with respect to judgment satisfaction until called on to enforce the judgment. Nevertheless, no family court should be unaware of or unresponsive to realities that cause its orders to be ignored. For example, patterns of systematic failures to pay child support and to fulfill interim criminal sentences are contrary to the purpose of the courts, undermine the rule of law, and diminish public trust and confidence in the courts. Monitoring and enforcing proper procedures and interim orders while cases are pending are within the scope of this standard.

Standard 3.4 applies also to those circumstances when a court relies upon administrative and quasi-judicial processes to screen and divert cases by using differentiated case management strategies and alternative dispute resolution. Noncompliance remains an issue when the family court sponsors such programs or is involved in ratifying the decisions that arise out of them.

A family court, like courts of general jurisdiction, may rely on conventional means for enforcement of its orders. However, certain jurisdictional areas may require a family court to assume a greater role in ensuring that its orders are enforced. Unlike orders issued by courts of general jurisdiction, orders issued by a family court predominantly address critical issues concerning the welfare of a child or protection of a victim in a domestic dispute. Failure by the court to aggressively ensure strict compliance with its orders can have catastrophic consequences for children and families.

In 1995, the Delaware Supreme Court was awarded a Court Improvement Project grant to access and improve how courts within the State handle cases involving foster care, termination of parental rights and adoptions. In May of 1997 the Court Improvement Project report was issued which included a series of recommendations for improvement which included significant enhancement of the oversight role of the court and expedited timeliness in child welfare cases. Implementation of the recommendations has begun.

In 1995, the Family Court, in conjunction with the law enforcement community, developed the nation's first automated, statewide system for issuing Protection From Abuse Orders and for on-line monitoring for compliance with specific provisions set forth in the Orders. The law enforcement community and all Delaware Courts have twenty-four-hours/seven-days-a-week on-line access to Family Court's Protection From Abuse Orders. The system also issues "notices" to the appropriate law enforcement agency when a party fails to comply with certain provisions of the court order within specified time frames.

Similar to the Dispositional Guidelines for Juveniles, adult defendants are sentenced in conformity with the Delaware Sentencing Accountability Commission (SENTAC) Guidelines. A special category for domestic violence offenses provide enhanced presumptive sentences within the statutory limits.

Standard 3.5 Production and Preservation of Records

Records of all relevant family court decisions and actions are accurate and properly preserved.

Commentary

Equality, fairness, and integrity in family courts depend in substantial measure upon the accuracy, availability, and accessibility of records. Standard 3.5 requires that family courts preserve an accurate record of their proceedings, decisions, orders, and judgments. Relevant court records include indexes, dockets, and various registers of court actions maintained for the purposes of inquiry into the existence, nature, and history of actions at law. Also included are the documents associated with cases that make up official case files as well as the verbatim records of proceedings.

Preservation of the case record entails the full range of responsible records management practices. Because records may affect the rights and duties of individuals and families for generations, their protection and preservation over time are vital. Record systems must ensure that the location of case records is always known, whether the case is active and in frequent circulation, inactive, or in archive status. Inaccuracy, obscurity, loss, or untimely availability of court records seriously compromises court integrity and subverts the judicial process.

The management and preservation of the case record, including exhibits and recordings of court proceedings, present a unique challenge in the family court setting. In many courts of general jurisdiction, the "case record" is just that: pleading(s), court order(s), indexes, dockets, and verbatim records of court proceedings which pertain to a single cause of action brought before the court for resolution. This type of case record has a clearly identifiable start and end in terms of the "records management life cycle" (records creation through archival). Additionally, once the litigation is concluded, the litigants often have no further contact with the general jurisdiction court. Management preservation and archiving of the court's record in this type of setting, while still very demanding, is far less complex than in the family court setting.

The family court jurisdiction encompasses litigation between or among family members on matters such as child custody,visitation and support, which can last, quite literally, from the birth of a child to the age of majority. Accordingly, the "life cycle" of the "case record" in the family court setting can span many years and necessitates special consideration in formulating a family court's records management program. The sheer longevity of domestic relations litigation will significantly increase the need to access the court record over the life of the case.

Litigation in the family court setting may involve multiple matters litigated virtually simultaneously; whether as a result of a single set of litigants bringing multiple pleadings before the court for resolution, such as child custody, visitation and support, or as a result of multiple "sets" of litigants filing single pleadings relating to the same family issues, such as grandparents' petition for visitation, natural parents' petition for custody, custodial parents' petition for child support, the Division of Family Services' dependency/neglect petition, etc. The reality is that in the family court setting, multiple matters may be litigated virtually simultaneously as a result of differentiated case management practices (i.e., the child dependency/neglect petition before a judge, the child support petition before a commissioner, and lastly the custody and visitation matters before a mediator). As a result, multiple individuals (judges, commissioners, mediators, attorneys, self-represented litigants, court staff, agency staff, et al.) need access to the court records seemingly at the same time. However, none can make do with just a single portion of the record. The challenge of how to organize the multitude of documents that will come to comprise the court record and ensure its accessibility to all who may need access while providing for the security of the court record is substantial in a family court setting.

Issues of "confidentiality" also complicate the records management in the family court setting. The court record must be accessible to those authorized to have access while ensuring that "confidentiality" is maintained. This presents a significant challenge to the clerks charged with custodial responsibilities over the court's records. In many jurisdictions, certain aspects of the domestic relations jurisdiction remain confidential while other jurisdictional areas are matters of public record (see Standard 1.1). Recognizing this is essential when developing a records management program in the family court setting.

The Family Court in Delaware has undertaken a number of records management initiatives in order to ensure that the Court's records are accurate, accessible, and properly preserved.

Independence and Accountability

General Commentary The judiciary must assert and maintain its distinctiveness as a separate branch of government. Within the organizational structure of the judicial branch of government, family courts must establish their legal and organizational boundaries, monitor and control their operations, and account publicly for their performance. Independence and accountability permit government by law, access to justice, and the timely resolution of disputes with equality, fairness, and integrity; and they engender public trust and confidence. Family courts must both control their proper functions and demonstrate respect for their coequal partners in government.

Because judicial independence protects individuals from the arbitrary use of government power and ensures the rule of law, it defines court management and legitimates its claim for respect. A family court possessing institutional independence protects its judicial officers and managers from unwarranted pressures. A family court, more than any other segment of a judicial branch shares responsibility with other governmental agencies in ordering treatment and services as well as monitoring compliance with those orders. Balancing the need for interagency collaboration with the independence of the judicial branch is one of the major challenges facing a family court.

Independence carries with it the duty of accountability. Standards of performance in the area of Independence and Accountability require that family courts acknowledge this duty and operate in accordance with its assigned responsibilities and jurisdiction within the State judicial system. Independence is not likely to be achieved if the family court is unwilling or unable to manage itself. Accordingly, the family court must establish and support effective leadership, operate effectively within the State court system, develop plans of action, obtain resources necessary to implement those plans, measure its performance accurately, and account publicly for its performance.

The five standards in the performance area of Independence and Accountability combine the principles of separation of powers and judicial independence with the need for comity and public accountability. Standard 4.1 requires the family court to exercise authority; to manage its overall caseload and other affairs; and to realize the principles of separation of powers, interdependence of the executive, legislative, and judicial branches of government, and comity in its governmental relations. Standard 4.2 requires a family court to seek adequate resources and to account for their use. Standard 4.3 extends the concept of equal treatment of litigants to the court's own employees by requiring every trial court to operate in accordance with personnel practices and decisions that are free of bias on the basis of race, religion, ethnicity, gender, sexual orientation, color, age, handicap, or political affiliation. It requires family courts to practice what they preach. Standard 4.4 requires the family court to inform the public of its programs and activities. Finally, Standard 4.5 acknowledges that the court's organizational character and activities must allow for adjustments to emergent events, situations, and social trends. There is an inherent tension between Standard 4.1 and Standard 4.5, particularly as applied to family courts. Maintaining judicial independence in an age of interagency collaboration requires creative interaction with other agencies in addressing emerging issues tempered with respectful consideration of the independence of each branch of government. Striking the proper balance is one of the major challenges facing a family court.

Commentary on Performance Measurement

In contrast to the measurement approach taken in the other four performance areas - which is largely prescriptive in its detailing of specific measures and indices - the measurement approach in the area if Independence and Accountability is largely heuristic. That is, rather than defining specific measures of performance, it requires methods by which a court proceeds along empirical lines to identify the people, events, and activities needed to develop valid and feasible performance measures to assess independence and accountability. And rather than initially taking a specific measurement, the court engages in a process that will allow it to make inferences about its performance based on empirical results. Field tests and demonstrations of experimental measurement approaches for the standards indicated that performance assessment in this area is highly context-driven. Differences in the sizes of courts, the statutory frameworks governing court funding, and the structural arrangements of essential justice system services make it very difficult to prescribe detailed measurement approaches.

The measures should be undertaken only following the formation of a steering committee of judges and court managers. This group will be involved in planning data collection, considering the significance of the results, and integrating the findings from all the measures into an overall view of court performance in this area. Structured group techniques, such as the Nominal Group Technique and Ideawriting, led by a skilled facilitator, are recommended to save time during steering committee meetings and to maximize objectivity in the committee's work. The use of the steering committee, in conjunction with research efforts that may be undertaken by court staff or consultants combine fact gathering, value clarification, decision making, and action.

Standard 4.1 Independence and Comity

The family court maintains and defends its institutional integrity and observes the principle of comity in itsgovernmental relations.

Commentary

For a family court to endure in both its role as preserver of legal norms and as part of a separate branch of government, it must develop and maintain its distinctive and independent status. It also must be conscious of its legal and administrative boundaries and vigilant in protecting them.

Effective family courts resist being absorbed or managed by the other branches of government. A family court compromises its independence, for example, when it merely ratifies plea bargains, serves solely as a revenue-producing arm of government, or perfunctorily places its imprimatur on decisions made by others. Effective court management enhances independent decisionmaking by family court judges.

The court must achieve independent status, however, without damaging the reciprocal relationships that it maintains with others. Family courts are necessarily dependent upon the cooperation of other components of the justice system, executive branch agencies and affiliates over which they have little or no direct authority. For example, elected clerks of court are components of the justice system, yet in some matters many function independently of family courts. Sheriffs and process servers perform both a court-related function and a law enforcement function. If a family court is to attain institutional independence, it must clarify, promote, and institutionalize effective working relationships with other components of the justice and social service systems. The boundaries and effective relationships between the family court and other segments of the justice and social service systems must therefore be apparent both in form and in practice.

The Family Court was established as a dual court/social service agency blurring the lines of responsibility between decision making and providing services for the "clients." (Even the use of the term "client" in referring to its litigants invokes an expectancy of personal, rather than judicial, advocacy by the Family Court.) In 1983, the treatment services components of the Family Court were transferred to the newly created Department of Services for Children, Youth and Their Families. Both the Court and the Department struggled with the transition of services to the executive branch agency, leaving the Court to order services it would no longer provide. In 1992, the Family Court changed its philosophy from the dual court/social service agency to the role of decision maker and gatekeeper. Referred to as the "court with a social conscience," the Family Court embraced its primary role in deciding facts, applying the law, and ordering equitable relief.

This fundamental change had external effects, as well, on the various agencies that interact with the court including prosecutors, defense counsel, the private bar, child protection agencies, child support enforcement agency, probation and parole, police, schools, and victim advocates. Today, the Court continues to rework its processes to reflect this philosophy. Assistance for litigants is moving from provision of intake services toward provision of information necessary for filing. Protocols describing how the Court will process certain actions are developed, rather than memoranda of understanding committing the Court to decide matters in a set manner, accentuating the independence of the court while recognizing the need for interagency collaboration.

Some of the most difficult problems with independence for the Family Court result from legislative mandates and expectations of non-judicial actions by the court. Laws that require the Family Court to assist petitioners in completing petitions, for example, may create an appearance of impropriety. Expectations that the Court should seek and receive relevant information outside the courtroom and pleadings conflict with the evidentiary and ethical rules key to an independent judiciary. In an effort to respond and redirect these expectations and mandates, the Family Court has established links between court staff and legislative staff to share their problems and to work toward proper solutions where possible. Representatives of the Family Court, both judicial and non-judicial, actively participate in commissions and task forces to provide information while reinforcing judicial independence where required.

This refocusing to a proper judicial perspective without abrogating responsibility for dealing with the individual needs and circumstances of its litigants has been key to the success of the Family Court as an independent unified family court.

Standard 4.2 Accountability for Public Resources

The family court responsibly seeks, uses, and accounts for its public resources.

Commentary

Effective court management requires sufficient resources to do justice and to keep costs affordable. Standard 4.2 requires that a family court responsibly seek the resources needed to meet its judicial and administrative responsibilities, to use those resources prudently (even if they are inadequate), and to account for their use. Effective family courts utilize a formal budgetingprocess supported by clear, measurable standards. Family court priorities often are not fully understood by those unfamiliar with the unique characteristics of a family court. Even with the general judiciary, family court priorities and justification for requests must be clearly set forth in the budgeting process.

Family courts must use available resources wisely to address multiple and often conflicting demands. Resource allocation to cases, categories of cases, and case processing are at the heart of family court management. Assignment of judges and other hearing officers and allocation of other resources must be responsive to established case processing goals and priorities, implemented effectively, and evaluated continuously.

Of course, accountability encompasses more than expenditure of public funds. The family court must be accountable to the appellate courts by ensuring its decisions are consistent with the law and within the boundaries of its constitutional and statutory authorization. The family court must be accountable to the parties by scheduling, hearing, and deciding cases within timeframes that are reasonable in light of the nature of the case and the requirements of due process. The family court must be accountable to those presenting cases, both attorneys and self-represented litigants, by adhering to the rules that govern its procedures. The family court must be accountable to the children who are the subject of litigation by ensuring their best interests are presented independently to the Court. Finally, the family court must be accountable to the general public for its trust and confidence by responding to inquiries and concerns in a timely and respectful manner.

The requirement of accountability also reaches beyond what dollars and numbers alone can express. It includes integrity, honesty, and persuasion in communicating the ideals of justice and requires authentic and strong leadership.

The Family Court of the State of Delaware addresses accountability on each of the levels in specific ways:

In order to maximize the available resources and present the strongest argument for required resources, the Family Court develops its budget request through an internal process of gathering requests, assessing needs, and setting priorities. In 1998, the Special Committee on Family Court Internal Operating Procedures, established by the Supreme Court of Delaware, undertook a year-long study of case management from judicial assignment through disposition. The study resulted in time standards for each stage of judicial case processing. Employing a modified Delphi technique, the Committee proposed a methodology for determining the need for judicial resources to meet the proposed standards. (See Appendix B) Similar efforts continue in developing time-specific standards for case processing prior to judicial assignment.

Legislative initiatives on the State and Federal levels impact current and future resource needs of the Family Court. Responsible court management requires that initiatives are analyzed for fiscal and operational impact on the Court. The Family Court centralizes this function in its administrative office. A daily review of legislation identifies those bills affecting the Court. Impact statements are prepared and submitted to the Administrative Office of the Delaware Courts and Budget Office. This process has increased the Court's ability to predict its needs and to respond responsibly to the legislature. As a result of this working relationship, legislators often send draft legislation to the Court for review and comment prior to final drafting.

Standard 4.3 Personnel Practices and Decisions

The family court uses fair employment practices.

Commentary

The family court stands as an important and visible symbol of government. Equal treatment of all persons before the law is essential to the concept of justice. Extended to the court's own employees, this concept requires every family court to operate free of bias--on the basis of race, religion, ethnicity, gender, sexual orientation, color, age, handicap, or political affiliation--in its personnel practices and decisions.

Fairness in the recruitment, compensation, supervision, and development of court personnel helps ensure judicial independence, accountability, and organizational competence. Court personnel practices and decisions should establish the highest standards of personal integrity and competence among its employees.

Delaware's state courts use one of two personnel systems. Some use a judicial branch personnel system partially administered by Delaware's Administrative Office of the Courts. Other courts, including the Family Court, are part of the State Merit System administered by the State Personnel Office. The vast majority of positions in the Family Court are "merit" positions requiring adherence to formal policies for posting vacancies, screening, interviewing, hiring, compensating, rewarding, and disciplining employees. A small number of positions are "exempt" from the merit system wherein employees serve at the pleasure of the Court due to the nature of their function requiring confidence and trust in the incumbent.

The Family Court is dedicated to employee development. It reinforces the belief that a court cannot be perceived as being fair in its judicial decisions if there is not fairness in its hiring and personnel practices. Beyond the formal requirements of the State Merit System, the Family Court developed an orientation program for all new employees that provides them with necessary information on the operations of the Court and their position within the system. Judicial officers and managers participate in an extensive two-week orientation program that includes visits to each courthouse, meetings with key judges and managers, and mentoring for new judges. The Court presently is working on job-specific competency training checklists that will increase the confidence of the employees and provide measurable benchmarks for employee development.

Since 1992, the Family Court has adopted an internal hiring policy allowing in-house candidates to apply for vacancies prior to external posting. Supervisor and employee development training programs on customer service have focused on fellow employees as internal customers. A staff initiated program, "Courting Quality", includes initiatives such as tuition reimbursement and career ladders within the Delaware Court System to enhance promotional opportunities for clerical employees.

Standard 4.4 Public Education

The family court informs the community about its programs.

Commentary

Most members of the general public do not have direct contact with the courts. Information about the courts is filtered through the media, lawyers, litigants, jurors, political officeholders, family court employees, and employees of other components of the justice and social service systems. Public opinion polls indicate that the public knows very little about the courts, and what is known is often at odds with reality. Community outreach through education is a responsibility that enhances the family court's independence and accountability.

Standard 4.4 requires family courts to inform and educate the public. Effective informational brochures and annual reports help the public understand and appreciate the administration of justice. Participation by court personnel in public affairs commissions also is effective. Moreover, family courts can effectively educate and inform the public by including able public representatives on advisory committees, study groups, and boards.

The Family Court recognizes that self-represented litigants present special problems in managing, presenting, and deciding cases. Whether referred to as pro se, pro per, or unrepresented litigants, those unaccustomed to the legal process and its requirements are easily frustrated. Family law cases can continue for years and the costs of representation often are beyond the means of many citizens. Delaware has joined the ranks of other States in developing pro se services to provide information to litigants in understandable, non-legal terms. From handouts on frequently asked questions to videos on presenting a specific type of case in court, the Family Court attempts to provide as much accurate and understandable information as possible within the limits of propriety. (See Standard 1.3, "Effective Participation.")

The Family Court educates the public through participation on community boards, commissions and task forces. A web page contains essential information on the Court and its forms and process. Judges, commissioners, and administrators regularly make presentations to community groups, schools, representatives of the legislature, and other interested individuals and groups. Ignorance of the requirements of due process, fundamental fairness, and the role of an impartial decision maker is perhaps the greatest threat to the Court's authority. A proactive approach to education helps litigants understand the process, enhancing confidence in the system and supporting its independence.

Standard 4.5 Response to Change

The family court anticipates new social conditions and emergent events and adjusts its operations as necessary.

Commentary

Effective family courts are responsive to emergent public social issues such as drug abuse, child and spousal abuse, domestic violence, concerns of the aging, AIDS, drunken driving, child support enforcement, crime and public safety, consumer rights, gender bias, and the more efficient use of fewer resources. Standard 4.5 requires family courts to recognize and respond appropriately to such public issues. A family court that moves deliberately in response to emergent issues is a stabilizing force in society and acts consistently with its role of maintaining the rule of law.

Courts can support, tolerate, or resist societal pressures for change. In matters for which the family court may have no direct responsibility, but nonetheless may help identify problems and shape solutions, responsiveness means the family court takes appropriate actions to inform responsible individuals, groups, or entities about the effects of these matters on the judiciary and about possible solutions.

The independence and accountability of the family court place the court in a position of responsibility and trust unique in its role as a court with a social conscience. Issues that comprise family law touch the heart of society. Factors that threaten the stability of families require swift attention and fully informed action. Domestic violence is one of these issues that has required much of the Family Court's attention. Delaware has come from the position as the last state in the Nation to enact a civil protection order for victims of domestic violence, to a national leader in addressing domestic violence efficiently and effectively. The statewide Family Court is the only court in the Nation with an automated system that creates protective orders and places them on an electronic registry available to every police officer in the State at the time the order is granted in the courtroom.

Domestic violence is but one of the many emerging issues that face family courts. In response to other threats to families,the Court initiates or participates in many action plans such as child death review panel and fatal incident response teams, a heroin task force, combating underage drinking conferences, recruiting Court Appointed Special Advocate (CASA) volunteers to represent abused, neglected, and dependent children, AIDS awareness through art displays, automobile theft reduction measures, specialized calendars for school cases of delinquency, speakers bureaus, stalking focus groups, and developing plans for addressing truancy.

Public Trust and Confidence

General Commentary

Compliance with law depends, to some degree, on public respect for the court. Ideally, public trust and confidence in family courts should stem from the direct experience of citizens with the courts. The maxim "Justice should not only be done, but should be seen to be done!" is as true today as in the past. Unfortunately, there is no guarantee that public perceptions reflect actual court performance.

Family courts serve several constituencies, and all should have trust and confidence in the courts. These constituencies vary by the type and extent of their contact with the courts. At the most general level is the local community, or the "general public"--the vast majority of citizens and taxpayers who seldom experience the courts directly. A second constituency served by family courts is a community's opinion leaders (e.g., the local newspaper editor, reporters assigned to cover the court, the police chief, local and State executives and legislators, representatives of government organizations and social service agencies with power or influence over the courts, researchers, and members of court watch committees). A third constituency includes citizens who appear before the court as attorneys, litigants, jurors, or witnesses, or who attend proceedings as representatives, family friends, or victims of someone before the court. This group has direct knowledge of the routine activities of a court. The last constituency consists of judicial officers, other employees of the court system and allied agencies, and lawyers--both within and outside the jurisdiction of the family court--who may have an "inside" perspective on how well the court is performing. The trust and confidence of all these constituencies are essential to family courts.

The central question posed by the three standards in this final area is whether family court performance -- in accordance with standards in the areas of Access to Justice; Expedition and Timeliness; Equality, Fairness, and Integrity; and Independence and Accountability--actually instills public trust and confidence. Standard 5.1 requires that the family court be perceived by the public as accessible. Standard 5.2 requires that the public believe that the family court conducts its business in a timely, fair, and equitable manner and that its procedures and decisions have integrity. Finally, Standard 5.3 requires that the family court be seen as independent and distinct from other branches of government at the State and local levels and that the court be seen as accountable for its public resources.

Ideally, a family court that meets or exceeds these performance standards is recognized by the public as doing so. In fulfilling its fundamental goal of resolving disputes justly, expeditiously, and economically, the court will not always be on one side of public opinion. Nevertheless, where performance is good and communications are effective, public trust and confidence are likely to be bolstered. When public perception is distorted and understanding unclear, good performance may need to be buttressed with educational programs and more effective public information. In addition, because in some instances a court may be viewed as better than it actually is, it is important for courts to rely on objective data and public perceptions in assessing court performance.

Commentary on Performance Measurement

The three standards in this performance area are associated with 14 measures, all but three of them drawn from the other performance areas. Because a court's performance with regard to public trust and confidence is dependent, in large part, on its performance in other performance areas like access to justice and fairness and equality, several of the measures rely on informed opinions (i.e., opinions of individuals who have had contact with the court). For example, in Measure 1.2.6, Evaluation of Accessibility and Convenience by Court Users, the ease and convenience of conducting business with the court is measured trough a survey of regular court users --- court employees, attorneys, probation officers, and jurors.

This performance area includes three measures that specifically address Standards 5.1, 5.2, and 5.3. These measures are presented under Standard 5.1 and are referred to in the overviews of the other two standards in Trial Court Performance Standards and Measurement System Implementation Manual.3 The measures include 5.1.1, Court Employees' Perceptions of Court Performance, 5.1.2, Justice System Representatives' Perceptions of Court Performance, and 5.1.3, General Public's Perceptionsof Court Performance. The first measure is conducted through a mailed survey to court employees, the second through a modified focus group with representatives of the various components of the justice system, and the third via a telephone survey of the general public.

Measures 5.1 and 5.2 provide the court with the most useful information for developing an action plan for improving performance in the area. The third measure provides a benchmark of the public's perception of overall performance. The benchmark will serve as a gauge for comparing the results of future surveys of public perception. However, because the general public has little firsthand information about trial courts, the results of the measure provide only limited help in developing an action plan for improvement.

A court undertaking measures in this area may find it helpful to work with professionals skilled in research design (e.g., a marketing research group or professors of research methodology). This is particularly true for the survey of the general public. The methodologist could also help court officials weigh the benefits and costs of conducting the measures and discuss alternatives that address more specific needs of the court and its community. For example, if the court is particularly concerned with the perceptions of the media, it may prefer to focus its attention and resources on that public. A small town hall meeting with members of the media to obtain their perceptions of court performance may be a better approach for gauging public trust and confidence for this court. Similarly, a court might determine, based on the results of measures in other areas, that a follow up study of the perceptions of attorneys or jurors may be warranted. In that case, the court, with the help of the research methodologist, might modify the survey or focus group measures to better address the population of interest. The court also could explore other options (e.g., interviews) for obtaining specific information of interest.

Finally, it is important to note that the measures in this area examine individuals' perceptions of court performance with regard to the court's administration and operation. They do not examine the extent of public agreement with individual case decisions made by the court.

Standard 5.1 Accessibility

The public perceives the family court and the justice it delivers as accessible.

Commentary

The five standards grouped in the area of Access to Justice require the removal of barriers that interfere with access to family court services. Standard 5.1 focuses on the perceptions of different constituencies about court accessibility. A family court should not only be accessible to those who need its services but also be perceived as accessible by those who may need its services in the future.

Findings in recent surveys by the American Bar Association, National Center for State Courts, and Connecticut Commission on Public Trust and Confidence validated the results of an informal survey of Family Court litigants in New Castle County. The snapshot survey indicated that coming to the Family Court was inconvenient and an intimidating process for most of the individuals questionned. Furthermore, litigants reported feeling confused and worried due to difficulties navigating around the city, finding their way to the Family Court, knowing the length of time required to be set aside for proceedings, securing parking, and in general, uncertainty regarding procedures. Most litigants planned on proceeding without counsel, but nearly all of those indicated that they did not know exactly what to do and would hire counsel if they could afford to do so.

The following actions are being considered or implemented by the Family Court to address Standard 5.1:

Standard 5.2 Expeditious, Fair, and Reliable Court Functions

The public has trust and confidence that basic family court functions are conducted expeditiously and fairly, and that court decisions have integrity.

Commentary

As part of effective court performance, Standard 5.2 requires a family court to instill in the public trust and confidence that basic court functions are conducted in accordance with the standards in the areas of Expedition and Timeliness and Equality, Fairness, and Integrity. There should be no unnecessary delay in dispensing even-handed justice.

Letters of complaint received by the Family Court indicate that public misunderstanding of laws, rules and procedures is the most common cause of a lack of public trust and confidence in the court. In order to address this and other problems highlighted by this standard, the Family Court is considering or implementing the following actions:

Standard 5.3 Judicial Independence and Accountability

The public perceives the family court as independent, not unduly influenced by other components of government, and accountable.

Commentary

The policies and procedures of the family court, and the nature and consequences of interactions of the family court with other branches of government and non-profit or private social service agencies affect the perception of the court as an independent and distinct branch of government. A family court that establishes and respects its role as part of an independent branch of government and diligently works to define its relationships with the other branches presents a favorable public image. Obviously, the opinions of community leaders and representatives of other branches of government are important to perceptions of the court's institutional independence and integrity. Perceptions of other constituencies (e.g., those of court employees) about court relationships with other government agencies, its accountability, and the role within the community also should not be overlooked as important contributions to a view of the court as both independent and accountable.

Because of their subject matter jurisdiction, family courts must interact more frequently than other courts with socialservice agencies and other public, non-profit and private organizations and their representatives. Comments made by litigants to Family Court staff suggest that the general public often is not able to distinguish and often confuses these agencies and organizations, their representatives and their role in the Court. This problem is exacerbated when the organizations and agencies are identified by acronyms and initials that create a veritable alphabet soup-- DCSE, DFS, DYRS, DSCYF, HSS, APS, TASC, and ICPC - and their representatives must conduct their business in court in cramped and non-private spaces in the courthouse. If nothing else, this problem creates an appearance of impropriety, and a resulting erosion of public trust and confidence in the Family Court. In order to address this problem and other issues raised by Standard 5.3, the Family Court has implemented or is considering the following: