Editor's note. This is the second installment in a two-part commentary regarding delays in state court rulings. The first editorial can be seen here.

In many parts of this state, overcrowded dockets result in lengthy delays in obtaining hearings in many family matters. The effect of these delays is that orders of our family courts are rendered meaningless when there is a need for prompt judicial enforcement. Similarly, the legal process is rendered valueless and ineffective if parties in family matters must wait months to establish or modify court orders.

In the typical family law case after the action is commenced, the first challenge for the parties is to establish court orders. Those orders may involve payment of child support and alimony; custody and access to minor children; or a variety of other miscellaneous matters such as exclusive possession of the home, payment for children's extracurricular activities and uninsured medical expenses. If the parties are unable to agree regarding those issues, they must rely on the court to establish orders after a full evidentiary hearing.

Once a party files a motion for such orders, that motion appears on a short calendar for a hearing. However, it is common for the court to require those parties to schedule any such hearing on a "date certain." All an attorney need do is assert that the matter will take in excess of an hour and it will be set for a "date certain" in many jurisdictions. This is because the hearings are lengthy and our judges are simply too busy on short calendar days to devote scarce judicial resources to lengthy hearings.

In many judicial districts, it is not uncommon for parties to wait several months for a hearing date. During those months, if there are no court orders, a parent with custody of minor children may be forced to go without financial support for those children. Or a parent who is being denied access to a child may be forced to experience the pain of separation from his or her child for months.

Similarly, once parties have obtained court orders, either by agreement or following an evidentiary hearing, they must rely on the court to enforce those orders if a party has failed to comply. In accordance with the established system, any party seeking to enforce or modify existing court orders must file the appropriate motion, and that motion will appear on a short calendar. Yet, as noted, if the hearing will consume more than an hour of the court's time, the local practice in a variety of judicial districts requires parties to obtain a "date certain" for a hearing, which often occurs months later.

These delays associated with obtaining a meaningful court hearing, therefore, are encountered at multiple stages along the timeline of a typical family matter. At the very beginning of the process the parties first encounter delays when seeking initial orders. After temporary orders have been issued, parties next encounter delays during the pendency of the case, when enforcement or modification becomes necessary. And finally, after a judgment has been rendered, if a party requires the assistance of a court to enforce or modify its orders, the parties encounter delays obtaining a meaningful postjudgment enforcement or modification hearing. Under our current system, all of these issues arising at each of these stages are gathered and printed on the court's short calendar dockets.

The judges and court staff have been struggling with the management of short calendar dockets for many, many years. While mediation is helpful in some circumstances, it too can be an instrument of delay, when the need is for enforcement of court orders. Likewise, in cases in which the parties have been unable to establish orders or to agree on modification of existing orders (including cases in which the parties have attempted mediation), there is a need to provide meaningful access to a judicial authority who can issue orders that are final and binding.

The Legislature has enacted Connecticut General Statutes §46b-66(c) to allow parties in family matters to submit a limited category of disputes in family matters to binding arbitration. However, that statute specifically precludes parties from submitting to arbitration "issues related to child support, visitation and custody." Unfortunately, because most short calendar matters involve disputes related to those very issues, this statute provides virtually no assistance to the many parties whose disputes appear on weekly short calendars throughout the state. Nor does this statute provide any assistance to overburdened family court judges who must manage the countless disputes that appear on their short calendars.

To assist the parties and the courts to manage and address short calendar matters, we believe the Legislature should reconsider the terms and provisions of §46b-66(c). While a lengthy and in-depth analysis of such a statutory amendment is beyond the scope of this editorial, it is beyond dispute that there is a desperate need for parties to have greater access to a binding process for resolving controversies regarding child support, custody and visitation. Because parties throughout the state have continued over many years to face untenable delays obtaining hearings on busy short calendar days, our Legislature should recognize and address these problems as a matter of public policy.

The setting of child support and child-related expenses would be easily accomplished in arbitration with no substantive risk. There is a rich body of law accompanying the child support guidelines to guide any arbitrator hearing such a matter. Notwithstanding whatever sound reasons previously existed for excluding child support, custody and visitation from arbitration, the increasingly desperate need of parties for access to an expedited process for resolving short calendar disputes should offset those concerns and compel reconsideration of the policies in favor of permitting arbitration of those issues.

We note that in 2016, the Uniform Law Commission promulgated the Uniform Family Law Arbitration Act, which specifically allows arbitration of child-related issues. Importantly, because of the court's duties as parens partiae to protect children, that act requires that a verbatim record be made of any part of the arbitration proceedings concerning a child-related dispute to allow for a "best interest" determination by the judge when determining whether to confirm the award. Other protections too detailed to present are embodied in the Uniform Family Law Arbitration Act. The act has now been approved by three states and introduced elsewhere.

Under the current short calendar system as noted above, parties must first appear in court to obtain a "date certain" for a hearing with a judge. Consistent with the existing terms and provisions of §46b-66(c), under this proposal, those parties would still be required to appear at short calendar to obtain approval of their agreement to arbitrate. Instead of encountering additional court delays, however, once the court approves their agreement to submit their dispute regarding contested short calendar issues to arbitration, they can avoid the judicial backlog.

We believe that the public policy in favor of avoiding intolerable short calendar delays and affording meaningful access to a binding dispute resolution process requires reconsideration of the policies underlying the legislative exclusion of child support, custody and visitation from binding arbitration. The importance to children and families associated with resolving promptly any such disputes in family matters requires a comprehensive and thoughtful review of the terms and provisions of General Statutes §46b-66(c) and the policies in favor of binding arbitration in family matters.