BILL ANALYSIS Ó
AB 458
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 458 (Atkins) - As Introduced: February 15, 2011
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : GUARDIANSHIPS: VENUE
KEY ISSUE : IN ORDER TO DISCOURAGE FORUM SHOPPING AND ENCOURAGE
CUSTODIAL DECISIONS IN THE COUNTY WHERE THE CHILD RESIDES,
SHOULD VENUE RULES IN GUARDINSHIP AND CUSTODY AND VISITATION
CASES BE BETTER HARMONIZED?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This bill, sponsored by the Judicial Council, establishes new
rules for determining appropriate venue in a guardianship case
when a custody proceeding involving the same child already
exists in another county. The bill creates a presumption that
the proper venue for a guardianship case is the court in the
county where both the child and the proposed guardian live, if
they have resided there for at least six months. If they have
resided in the county for less than six months, the proper
venue under the bill is the county with the existing family law
proceeding. However, in both situations, that presumption can
be overcome by the court's determination that maintaining the
action in the presumptive court is not in the child's best
interests. In order to ensure that the various courts in which
matters concerning the same child are pending are informed, the
bill requires the courts to communicate with one another to
ensure the child's interests are best protected. The bill has
no known opposition.
SUMMARY : Establishes venue rules for the filing of a
guardianship case when a custody or visitation proceeding has
been filed in another court. Specifically, this bill :
1)Provides that a minor's parent may not be appointed as the
minor's guardian of the person, except if the custodial
parent has been diagnosed with a terminal condition and is
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appointed together with another person as joint guardians of
the person.
2)Provides that if a guardianship proceeding is filed in one
county and a custody or visitation proceeding has already
been filed in another county:
a) If the proposed ward and guardian have resided in the
county for six months or more, the court in that county is
the proper venue for the action, unless the court
determines that the best interests of the child require
that the proceeding be transferred to another court.
b) If the proposed ward and guardian have resided in the
county for less than six months, the court must transfer
the case to one of the other courts, unless the court
determines that the best interests of the child require
that the proceeding be maintained where it was filed.
3)Requires the court where a guardianship proceeding is
commenced to communicate with each court where a custody or
visitation proceeding for the same child is on file before
making a venue determination under #2, above.
4)If the court appoints a guardian of the person, requires the
court to transmit the order to each court where a custody or
visitation proceeding is on file.
5)Requires the Judicial Council, by January 1, 2013, to adopt
rules to implement the provisions in #s 3 and 4, above.
6)Provides that once a guardian or a temporary guardian is
appointed, the court in the guardianship proceeding has
exclusive jurisdiction to determine all custody and
visitation issues for the child until the guardianship is
terminated.
EXISTING LAW :
1)Allows a court to appoint a guardian of the person or estate,
or both, for a proposed ward. (Probate Code Section 1514.)
2)Provides that the proper venue for a dissolution proceeding
is the county where either the petitioner or respondent
resides. (Code of Civil Procedure Section 395.)
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3)Provides that the proper venue for parentage cases is one of
the following: (a) the county in which the child resides;
(b) if the child is the subject of a pending adoption, any
county in which a licensed California adoption agency to
which the child has been relinquished maintains an office;
(c) if the child is the subject of a pending adoption, the
county in which an office of the department or a public
adoption agency investigating the petition is located; or (4)
if the father is deceased, the county in which proceedings
for probate of the estate of the father of the child have
been or could be commenced. (Family Code Section 7620.)
COMMENTS : This bill establishes new venue rules for a
guardianship case when a custody or visitation case for the
same child already exists. The bill creates a presumption that
the proper venue for a guardianship case is the court in the
county where both the child and the proposed guardian live, if
they have resided there for at least six months. If they have
resided in the county for less than six months, the proper
venue under the bill is the county with the existing family law
proceeding. However, in both situations, that presumption can
be overcome by the court's determination that maintaining the
action in the presumptive court is not in the child's best
interests. In order to ensure that the various courts in which
matters concerning the same child are pending are informed, the
bill requires the courts to communicate with one another to
ensure the child's interests are best protected.
In support, the author writes that this bill "establishes new
procedures for determining the appropriate venue of a
guardianship case when a custody proceeding involving the
proposed ward is already on file in another county. The bill
also discourages forum shopping by child custody litigants, and
preserves the appointing court's exclusive jurisdiction over
custody and visitation of the minor while the guardianship
remains in effect."
This bill would partially abrogate California Supreme Court
precedent from 60 years ago . In Greene v. Superior Court
(1951) 37 Cal.2d 307, the Supreme Court determined that a
guardianship case could not be brought in a court different
from the one that decided the dissolution case years earlier.
In that case, parents were divorced in 1945 in Santa Barbara
County and the mother was awarded custody of the children.
Mother remarried and moved to San Francisco, and in 1950 filed
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a guardianship petition in that county alleging that the
children's visits with their father were detrimental to their
welfare. The father objected to the guardianship, challenging
the jurisdiction of the San Francisco court, and filed a motion
to revise custody and visitation in the Santa Barbara case.
The Supreme Court held that the general rule that when two or
more courts have concurrent jurisdiction, the court first
assuming jurisdiction has exclusive jurisdiction applied in the
case. Since the Santa Barbara court had jurisdiction over the
children's custody and visitation first, it retained exclusive
jurisdiction to determine those arrangements. The San
Francisco court retained exclusive jurisdiction over the
guardianship, but not matters for which the Santa Barbara court
retained jurisdiction. Thus, the custody and visitation
matters had to be decided in Santa Barbara, even though the
children and their custodial parent had not lived there for
years.
This bill revises venue rules for the filing of a guardianship
case when there is a preexisting custody or visitation
proceeding. Under the bill, the proper venue for the
guardianship action is the county where the child and the
proposed guardian have resided for at least six months, unless
the best interests of the child require transfer to another
court. However, if the child and proposed guardian have lived
in the county for less than six months, the case should be
transferred to the court with the custody or visitation
proceeding, unless the best interests of the child require that
it be heard where the child now resides. This provides general
rules, but gives courts the discretion necessary to protect the
child's best interests.
The bill also requires that the courts communicate with each
other before the venue determination is made. In addition, if
the court orders a guardianship, the court is required to
provide copies of that order to the courts in which a custody
or visitation proceeding is on file. These provisions will
help ensure that all the relevant courts understand what is
transpiring in the case. The communication provisions are also
similar to the communication requirements between interstate
courts under the Uniform Child Custody Jurisdiction Act. (See
Family Code Section 3410.) Given the considerations that must
be understood to help expedite the court-to-court
communication, the bill further directs the Judicial Council to
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promulgate rules to implement the bill's communication
requirements by January 1, 2013.
Author's Amendments : To help ensure that the bill applies to
protect guardians of the person and that required Judicial
Council rules are developed timely, the author has agreed to
the following amendments:
On age 4, line 12, after "shall", insert: , January 1, 2013,
On page 4, line 23, after "of" insert: the person of
On page 4, line 24, after "of" insert: the person of
ARGUMENTS IN SUPPORT : In support of the bill, the Judicial
Council writes:
Specifically, AB 458 creates presumptions for determining
venue based on the length of the residence of the proposed
ward and proposed guardian in the county where the
guardianship action was filed, but preserves the court's
ability to make the ultimate determination based on the
best interests of the minor. The bill also establishes a
consultative procedure between courts to assist in
determining the appropriate venue of a probate
guardianship when one or more custody proceedings under
the Family Code involving the proposed ward are on file in
one or more other counties. In addition, AB 458
discourages forum shopping of the kind condemned in the
Greene case by a parent of a child disappointed in the
outcome of previous child custody litigation by preventing
the parent from seeking appointment in most situations as
the guardian of the child's person. The bill further
codifies case law establishing exclusive jurisdiction in
the guardianship court to determine custody or visitation
concerning the ward during the duration of the guardian's
appointment. Finally, language was added to AB 458 to
make clear that it does not impact the provisions in
current law providing for the consolidation of probate
guardianship and adoption proceedings.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 458
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Judicial Council (sponsor)
National Center for Youth Law
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334