BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 458|
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CONSENT
Bill No: AB 458
Author: Atkins (D)
Amended: 3/29/11 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/7/11
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 60-0, 4/14/11 (Consent) - See last page
for vote
SUBJECT : Guardianship
SOURCE : Judicial Council of California
DIGEST : This bill establishes venue rules for
guardianship cases when a guardianship proceeding is filed
in one county and a custody or visitation proceeding has
already been filed in one or more other counties. This
bill creates a presumption that venue is proper in the
county where the guardianship petition is filed if the
proposed guardian and child have resided in that county for
at least six months prior to the commencement of the
guardianship proceeding. This bill allows the courts to
exercise discretion if it is in the best interest of the
child to retain jurisdiction in the county where the
initial custody or visitation proceeding was filed.
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ANALYSIS : Existing law provides that a relative or other
person on behalf of the minor, or the minor if 12 years of
age or older, may file a petition for the appointment of a
guardian of the minor. (Probation Code Section 1510.)
Existing law provides that if it appears necessary, upon
hearing of the petition, the court may appoint a guardian
of the person or estate of the proposed ward or both.
(Probation Code Section 1514.)
Existing law provides that the court may, in the court's
discretion, appoint two or more joint guardians of the
person. (Probation Code Section 2105.)
This bill prohibits a minor's parent, except in specified
circumstances, from being appointed as a guardian of the
minor.
Existing law provides that the proper county for the
commencement of a guardianship proceeding is either of the
following: (a) the county in which the proposed ward
resides; or (b) any other county which would be in the best
interests of the proposed ward. (Probation Code Section
2201.)
Existing law provides that if proceedings for the
guardianship of the person are commenced in more than one
county, the guardianship of the person first granted,
governs and the other proceeding shall be dismissed.
(Probation Code Section 2203 (a).)
Existing law provides that a guardianship or
conservatorship proceeding may be transferred to another
county upon petition to the court. (Probation Code Section
2211.)
Existing law provides that if the court determines that the
transfer of the guardianship proceeding requested in the
petition will be in the best interests of the child it must
make an order transferring the proceeding to the other
county. (Probation Code Section 2215 (b)(1).)
Existing law provides that venue is proper to enforce an
obligation of child support in the county where the child
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resides. Existing law provides that venue is proper in a
proceeding to establish and enforce a foreign judgment or
court order for the support of a minor child in the county
where the child resides. (Code of Civil Procedures Section
395.)
Existing law provides that under the Uniform Parentage Act
proper venue exists in the county in which the child
resides or is found, or in other specified circumstances.
(Family Code Section 7620.)
Existing case law provides that where two courts exercise
concurrent jurisdiction, the first court to issue a custody
order assumes exclusive jurisdiction. ( Greene v. Superior
Court (1951) 37 Cal.2d 307, 310.)
This bill, in cases where a guardianship proceeding is
filed in one county and a custody or visitation proceeding
has already been filed in one or more other counties, do
the following:
create a presumption that if a proceeding for
guardianship is filed in the county where the proposed
ward and proposed guardian has resided for at least six
months prior to the commencement of the proceeding the
court in that county is the proper venue.
create an opposite presumption if the proposed ward and
proposed guardian have resided in the county for less
than six months, and would require the court to transfer
the guardianship proceeding to the first court having
jurisdiction.
allow the court to exercise discretion in either case if
the court determines it is in the best interest of the
minor.
This bill requires a court where the guardianship
proceeding is commenced to communicate with each court
concerning the proceedings prior to making a determination
whether or not to transfer the proceeding.
This bill also authorizes the court to communicate with
each court when a petition to transfer is filed where a
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custody or visitation proceeding is on file before
determining whether or not to transfer the petition.
This bill requires the court to transmit a copy of the
order appointing a guardian to each court where a custody
or visitation proceeding is on file.
This bill requires the Judicial Council to adopt rules of
court by January 1, 2013 to implement the provisions of
this bill.
This bill also authorizes the court that appointed the
guardian to have exclusive jurisdiction over all custody or
visitation matters involving the minor until the
guardianship proceeding is terminated.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/27/11)
Judicial Council of California (source)
National Center for Youth law
Trusts and Estates Section of the California State Bar
ARGUMENTS IN SUPPORT : The Judicial Council of
California, the sponsor of this bill writes, "ŬThis bill]
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, Ŭthis bill] 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
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court to determine custody or visitation concerning the
ward during the duration of the guardians' appointment.
Finally, language was added to Ŭthis bill] to make clear
that it does not impact the provisions in current law
providing for the consolidation of probate guardianship and
adoption proceedings.
In support of this bill, the National Center for Youth Law
writes, "current guardianship venue statutes do not provide
for the situation in which a petition for appointment of a
guardian of the person of a minor is filed after one or
more custody proceedings under the Family Code involving
that minor are on file in different counties. ŬThis bill]
offers clarity to the law under these particular
circumstances by creating presumptions based on the county
of residency of the minor and proposed guardian. ŬThis
bill] 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."
Also in support of this bill, the Trusts and Estates
Section of the California State Bar writes, "this
legislation would clarify that where a family custody or
visitation proceeding involving the proposed ward was first
filed in one or more counties, and a guardianship was
subsequently filed in another county, various presumptions
for determining venue would be created based upon length of
residence and best interests of the ward. The two courts
are required to communicate with each other before making a
determination as to proper venue. Finally, a mechanism is
created where a party in a family custody or visitation
proceeding could petition for transfer of the guardianship
proceeding to a court where the custody or visitation
proceeding is filed before the guardian is appointed. This
venue mechanism better suits the mobile requirements of our
modern families."
ASSEMBLY FLOOR :
AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Campos, Carter, Cedillo, Chesbro,
Cook, Davis, Dickinson, Donnelly, Eng, Fletcher, Fong,
Fuentes, Furutani, Gatto, Gordon, Hagman, Halderman,
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Hall, Hayashi, Roger Hernández, Hill, Huber, Hueso,
Huffman, Jeffries, Lara, Bonnie Lowenthal, Ma, Miller,
Mitchell, Monning, Nestande, Nielsen, Norby, Pan, Perea,
V. Manuel Pérez, Portantino, Silva, Skinner, Smyth,
Solorio, Swanson, Torres, Valadao, Wieckowski, Yamada,
John A. Pérez
NO VOTE RECORDED: Alejo, Butler, Charles Calderon, Conway,
Feuer, Galgiani, Garrick, Gorell, Grove, Harkey, Jones,
Knight, Logue, Mansoor, Mendoza, Morrell, Olsen, Wagner,
Williams, Vacancy
RJG:do 6/28/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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