BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 939|
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THIRD READING
Bill No: AB 939
Author: Assembly Judiciary Committee
Amended: 8/3/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/29/10
AYES: Corbett, Harman, Hancock, Leno
NO VOTE RECORDED: Walters
SENATE APPROPRIATIONS COMMITTEE : 8-0, 8/9/10
AYES: Kehoe, Alquist, Ashburn, Emmerson, Leno, Price,
Wolk, Yee
NO VOTE RECORDED: Corbett, Walters, Wyland
ASSEMBLY FLOOR : Not relevant
SUBJECT : Family law proceedings
SOURCE : Author
DIGEST : This bill makes various changes to family law
proceedings thereby implementing a number of the
legislative recommendations issued by the Elkins Family Law
Task Force.
ANALYSIS : Existing law prohibits after entry of judgment
in specified family law proceedings in which there was at
issue the visitation, custody, or support of a child,
modification of the judgment or order, and prohibits a
subsequent order in the proceedings, unless notice is
CONTINUED
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served upon the party, as specified.
This bill authorizes a postjudgment motion to modify a
custody, visitation, or child support order to be served on
the other party by first-class mail or airmail, as
specified.
Existing law provides that all relevant evidence is
admissible in an action before the court, including
evidence relevant to the credibility of a witness or
hearsay declarant, subject to specified exceptions.
This bill requires the court in a family law action to
receive all live, competent, and relevant testimony at a
hearing of an order to show cause or notice of motion,
unless the parties stipulate otherwise or the court makes a
finding of good cause to refuse to hear the testimony.
Existing law provides that a court in a dissolution of
marriage proceeding may order one party to pay the other
party an amount that is reasonably necessary for attorney's
fees or costs in order to ensure that each party has access
to legal representation. Under existing law, the court
shall base this determination on the respective incomes and
needs of the parties and any factors affecting the parties'
respective abilities to pay.
This bill provides that, when a request for attorney's fees
and costs is made, the court shall make findings regarding
whether an award of attorney's fees and costs is
appropriate, whether there is a disparity in access to
funds to retain counsel, and whether one party is able to
pay for legal representation. This bill requires the court
to make an order awarding attorney's fees and costs if the
findings demonstrate disparity in access and ability to
pay. This bill requires the Judicial Council, by January
1, 2012, to adopt a rule of court and develop a form to
implement this provision.
Existing law provides for summary dissolution proceedings
if certain conditions exist at the time the proceeding is
commenced, including that there are no children, as
specified, neither party has any interest in real property,
as specified, and the marriage is not more than five years
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in duration at the time the petition is filed. A proceeding
for summary dissolution is commenced by filing a joint
petition that is signed under oath by the husband and the
wife, as specified.
This bill revises the latter condition that must be met at
the time a proceeding for summary dissolution is commenced
to instead require that the marriage be not more than five
years in duration as of the date of separation of the
parties.
Existing law also provides that when six months have
expired from the date of the filing of the joint petition
for summary dissolution of marriage, the court may, upon
application of either party, enter judgment dissolving the
marriage. At any time before the filing of the application
for judgment, however, either party to the marriage may
revoke the joint petition and thereby terminate the
proceeding for summary dissolution.
This bill authorizes the court to enter judgment dissolving
the marriage when six months have expired without requiring
the application of either party, unless a revocation of the
joint petition has been filed.
Existing law provides that in an action for dissolution of
marriage, the court, upon motion, is required to hold a
preliminary status conference to determine whether a case
management plan will be ordered. Existing law further
provides that no case management plan may be ordered absent
the stipulation of the parties. Existing law also sets
forth the content of case management plans.
This bill deletes the requirement that the parties
stipulate to the case management plan.
This bill also deletes references to case management plans
and would instead refer to family centered case resolution
plans. This bill revises the content of those plans and
require the Judicial Council to adopt a statewide rule of
court to implement these provisions.
Existing law provides that the court may appoint private
counsel to represent the interests of a child in a custody
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or visitation proceeding if it determines that it would be
in the best interest of the child. Existing law specifies
the duties of a child's counsel, and grants the counsel the
discretion to present the child's wishes to the court if
he/she deems it appropriate.
This bill requires the court and counsel to comply with
specified requirements if the court appoints private
counsel pursuant to the provision described above. This
bill also requires the child's counsel to present the
child's wishes to the court if the child so desires.
Existing law authorizes a mediator to submit a
recommendation to the court as to the custody of or
visitation with a child, except as specified.
This bill provides that the mediation and recommendation
process shall be referred to as "child custody recommending
counseling" and the mediator shall be referred to as a
"child custody recommending counselor."
Under the Domestic Violence Prevention Act, the court in a
protective order proceeding may issue an ex parte order
granting temporary child custody and visitation to a party
who has established a parent and child relationship.
Existing law provides that the court may not make a finding
of paternity in this proceeding.
This bill provides that the court in a protective order
proceeding may accept a stipulation of paternity by the
parties and, if paternity is uncontested, enter a judgment
establishing paternity. This bill provides that if the
court in a protective order proceeding makes an order for
custody, visitation, or support, the order shall, if the
court so provides, survive the termination of the
protective order.
Under existing law, if allegations of child sexual abuse
arise during a child custody proceeding, the court may take
reasonable, temporary steps to protect the child's safety,
including requesting that the local child welfare services
agency conduct an investigation of the allegations.
Existing law provides that a social worker shall make an
investigation of allegations of child abuse or neglect and
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shall determine whether it is appropriate to offer child
welfare services to the family. Under existing law,
juvenile case files are confidential, except as provided.
This bill expands the scope of those provisions to apply to
all allegations of child abuse. This bill directs a social
worker to draw no inference regarding the credibility of
allegations of child abuse from the mere existence of a
child custody or visitation dispute. This bill also
provides an exception to the confidentiality of child
welfare agency records for certain participants in family
law and probate guardianship cases by authorizing the child
welfare agency to permit inspection of, and to provide
copies of, its records, as specified.
Background
The Elkins Family Law Task Force chaired by Associate
Justice Laurie D. Zelon of the Court of Appeal, Second
Appellate District, Division Seven was appointed in May
2008, for the purpose of conducting a comprehensive review
of family law proceedings in order to make recommendations
to the Judicial Council that would increase access to
justice for family law litigants; ensure fairness and due
process; and provide for more effective and consistent
family law rules, policies, and procedures. The Task Force
was formed at the suggestion of the California Supreme
Court in Elkins v. Superior Court (2007) 41 Cal.4th 1369.
In Elkins , the Supreme Court reviewed a local court rule
and a trial scheduling order in the family court that
required parties to present their cases and establish the
admissibility of all the exhibits they sought to introduce
at trial by declaration. The Court found that the local
rule conflicted with existing statutory law and deprived
litigants of meaningful access to the courts. In its
decision, the Court recognized that the increasing numbers
of self-represented litigants present unique challenges to
the courts' ability to provide meaningful access to
justice. The Court emphasized that if trial courts do not
have adequate resources for family law cases, they should
seek additional resources instead of putting efficiency
ahead of fairness. Accordingly, the Court suggested that
the Judicial Council establish a task force to study and
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propose measures to assist trial courts in achieving
efficiency and fairness in marital dissolution proceedings,
while ensuring access to justice for litigants.
The Task Force conducted a comprehensive review of family
courts during the past two years through in-person
meetings, conference calls, and outreach to family court
stakeholders and litigants. The final report contains 21
main recommendations that generally cover the following
five aspects of family court: (1) efficient and effective
procedures to help ensure justice, fairness, due process,
and safety, (2) more effective child custody procedures for
a better court experience for families and children, (3)
ensuring meaningful access to justice for all litigants,
(4) enhancing the status of, and respect for family law
litigants and the family law process through judicial
leadership, and (5) laying the foundation for future
innovation. The Judicial Council accepted the report on
April 23, 2010. The final report can be found at
http://www.courtinfo.ca.gov/jc/tflists/documents/elkins-fina
lreport.pdf .
While many of the Task Force's recommendations may be
implemented by the courts, whether through Rule of Court or
even informal policy change, many others require statutory
changes. This bill seeks to implement most of the Task
Force's key legislative recommendations.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12
2012-13 Fund
New Rules of Court Minor and absorbable,
one-time workloadGeneral*
* Trial Courts Trust Fund
SUPPORT : (Verified 8/10/10)
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California Judges Association
City of West Hollywood
Family Law Section of the State Bar
OPPOSITION : (Verified 8/10/10)
California Protective Parents Association (unless amended)
Center for Judicial Excellence
Child Abuse Solutions (unless amended)
Mathis and Associates
ARGUMENTS IN SUPPORT : The author states: "As the Elkins
Task Force report recently highlighted, family law cases
can have very real, profound and life-long impacts on
spouses, parents and children. It is no exaggeration to
note that other than motor vehicle cases, family law cases
touch more of our constituents' lives most directly and
profoundly than any other. Our family courts decide where
children may live and how they are to be supported; they
divide up homes, businesses and assets; and protect
families and most importantly children. Unfortunately, too
often today, family courts must fight an increasingly
overwhelming battle to try to provide meaningful access to
justice to the hundreds of thousands of families who look
to our court system for protection, most of whom do not
have a lawyer. This bill, which implements some of the
most important recommendations from the Elkins Task Force,
seeks to ensure justice, fairness and due process for all
family law litigants and their children. The important
changes proposed by this bill, including allowing parties
to present live testimony in their cases and to review
custody recommendations before they are presented to the
court, and helping family courts to protect children from
harm, will make a significant improvement to the lives of
Californians, and especially California's children."
ARGUMENTS IN OPPOSITION : Opponents of this bill contend,
that while this bill generally would improve access to
justice and due process for family court litigants, the two
sections regarding case management would have the opposite
effect. Opponents express concerns that removing the
litigant's ability to stipulate to case management would
create a significant statutory increase in power for court
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officers who opponents assert are already powerful.
Opponents also assert that case management would broaden
the discretion of judges by allowing them to order
stipulation to court appointees whenever they see fit.
Opponents recognize that other civil courts have case
management and fully support a definition of case
management that is limited to calendaring case events, and
ensuring attorneys meet time frames properly. However,
opponents feel that there are significant differences
between family court and other civil courts which make case
management inappropriate for family court.
RJG:mw 8/10/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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