BILL NUMBER: AB 1121 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Atkins
FEBRUARY 22, 2013
An act to amend Sections 1277 and 1278 of the Code of Civil
Procedure, and to add Section 103426 to, the Health and Safety Code,
relating to civil proceedings.
LEGISLATIVE COUNSEL'S DIGEST
AB 1121, as introduced, Atkins. Civil proceedings: petition for
change of name.
Existing law sets forth the requirements and procedures for
proceedings commenced by the filing of a petition for a change of
name. Existing law authorizes a court to grant the petition without a
hearing if no written objection to the change of name is timely
filed and imposes publication requirements with respect to the court
hearing of the change of name petition. Existing law also requires
that the current legal name of the petitioner be kept confidential by
the court under prescribed circumstances.
This bill would provide that if no written objection is timely
filed, the order reciting the filing of the petition, the petitioner'
s name, and the proposed name shall state that the court is required
to grant the petition without a hearing. The bill would repeal the
publication requirements relating to the order to show cause and
would repeal and recast the provisions specifying the conditions
under which the current legal name of the petitions be kept
confidential by the court, including a situation where the petition
for a change of name is sought in order to conform the petitioner's
name to his or her gender identity. The bill would make conforming
changes.
Existing law authorizes a person to file a petition with the
superior court in any county to seek a judgment recognizing a change
of gender whenever that person has undergone clinically appropriate
treatment for the purpose of gender transition. Existing law requires
that if requested, the judgment include an order that a new birth
certificate be prepared to reflect the change of gender and any
change of name. Existing law requires that the State Registrar
transmit a certified copy of a birth certificate newly established
pursuant to these provisions.
This bill would require the State Registrar to issue a new birth
certificate without a court order for any person born in the state
who has undergone clinically appropriate treatment for the purpose of
gender transition and submits to the State Registrar an affidavit of
a physician attesting that the person has undergone that treatment,
as specified. Upon receipt of the documentation and a prescribed fee,
the State Registrar would be required to establish a new birth
certificate reflecting the person's sex and name, if applicable.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1277 of the Code of Civil Procedure is amended
to read:
1277. (a) If a proceeding for a change of name is commenced by
the filing of a petition, except as provided in subdivisions (b),
(c), and (e), the court shall thereupon make an order reciting the
filing of the petition, the name of the person by whom it is filed,
and the name proposed. The order shall direct all persons interested
in the matter to appear before the court at a time and place
specified, which shall be not less than six nor more than 12 weeks
from the time of making the order, unless the court orders a
different time, to show cause why the application for change of name
should not be granted. The order shall direct all persons interested
in the matter to make known any objection that they may have to the
granting of the petition for change of name by filing a written
objection, which includes the reasons for the objection, with the
court at least two court days before the matter is scheduled to be
heard and by appearing in court at the hearing to show cause why the
petition for change of name should not be granted. The order shall
state that, if no written objection is timely filed, the court
may shall grant the petition without a
hearing.
A copy of the order to show cause shall be published pursuant to
Section 6064 of the Government Code in a newspaper of general
circulation to be designated in the order published in the county. If
no newspaper of general circulation is published in the county, a
copy of the order to show cause shall be posted by the clerk of the
court in three of the most public places in the county in which the
court is located, for a like period. Proof shall be made to the
satisfaction of the court of this publication or posting, at the time
of the hearing of the application.
Four weekly publications shall be sufficient publication of the
order to show cause. If the order is published in a daily newspaper,
publication once a week for four successive weeks shall be
sufficient.
If a petition has been filed for a minor by a parent and the other
parent, if living, does not join in consenting thereto, the
petitioner shall cause, not less than 30 days prior to the hearing,
to be served notice of the time and place of the hearing or a copy of
the order to show cause on the other parent pursuant to Section
413.10, 414.10, 415.10, or 415.40. If notice of the hearing cannot
reasonably be accomplished pursuant to Section 415.10 or 415.40, the
court may order that notice be given in a manner that the court
determines is reasonably calculated to give actual notice to the
nonconsenting parent. In that case, if the court determines that
notice by publication is reasonably calculated to give actual notice
to the nonconsenting parent, the court may determine that publication
of the order to show cause pursuant to this subdivision is
sufficient notice to the nonconsenting parent.
(b) (1) If the petition for a change of name alleges a reason or
circumstance described in paragraph (2), and the petitioner is a
participant in the address confidentiality program created pursuant
to Chapter 3.1 (commencing with Section 6205) of Division 7 of Title
1 of the Government Code, the action for a change of name is exempt
from the requirement for publication of the order to show cause under
subdivision (a), and the petition and the order of the court shall,
in lieu of reciting the proposed name, indicate that the proposed
name is confidential and will be on file with the Secretary of State
pursuant to the provisions of the address confidentiality program.
(2) The procedure described in paragraph (1) applies to petitions
alleging any of the following reasons or circumstances:
(A) To avoid domestic violence, as defined in Section 6211 of the
Family Code.
(B) To avoid stalking, as defined in Section 646.9 of the Penal
Code.
(C) The petitioner is, or is filing on behalf of, a victim of
sexual assault, as defined in Section 1036.2 of the Evidence Code.
(3) For any petition under this subdivision,
(b) Upon the petitioner's request, in
situations where a person's safety or privacy is at risk, the
current legal name of the petitioner shall be kept confidential by
the court and shall not be published or posted in the court's
calendars, indexes, or register of actions, as required by Article 7
(commencing with Section 69840) of Chapter 5 of Title 8 of the
Government Code, or by any means or in any public forum, including a
hardcopy or an electronic copy, or any other type of public media or
display . , if any of the following
conditions is met:
(1) Confidentiality is necessary to avoid domestic violence, as
defined in Section 6211 of the Family Code.
(2) Confidentiality is necessary to avoid stalking, as defined in
Section 646.9 of the Penal Code.
(3) The petitioner is, or filing on behalf of, a victim of sexual
assault, as defined in Section 1036.2 of the Evidence Code.
(4) The petition for a change of name is sought in order to
conform the petitioner's name to his or her gender identity.
(4) (A)
(c) (1) A petitioner
may request that the court file the petition and any other papers
associated with the proceeding under seal. The court may consider the
request at the same time as the petition for name change, and may
grant the request in any case in which the court finds that all of
the following factors apply:
(i)
(A) There exists an overriding interest that overcomes
the right of public access to the record.
(ii)
(B) The overriding interest supports sealing the
record.
(iii)
(C) A substantial probability exists that the
overriding interest will be prejudiced if the record is not sealed.
(iv)
(D) The proposed order to seal the records is narrowly
tailored.
(v)
(E) No less restrictive means exist to achieve the
overriding interest.
(B)
(2) On or before January 1, 2010, the Judicial Council
shall develop rules of court and forms consistent with the
requirements of this paragraph.
(c) A proceeding for a change of name for a witness participating
in the state Witness Protection Program established by Title 7.5
(commencing with Section 14020) of Part 4 of the Penal Code who has
been approved for the change of name by the program is exempt from
the requirement for publication of the order to show cause under
subdivision (a).
(d) If application for change of name is brought as part of an
action under the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), whether as part of
a petition or cross-complaint or as a separate order to show cause in
a pending action thereunder, service of the application shall be
made upon all other parties to the action in a like manner as
prescribed for the service of a summons, as is set forth in Article 3
(commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2.
Upon the setting of a hearing on the issue, notice of the hearing
shall be given to all parties in the action in a like manner and
within the time limits prescribed generally for the type of hearing
(whether trial or order to show cause) at which the issue of the
change of name is to be decided.
(e) If a guardian files a petition to change the name of his or
her minor ward pursuant to Section 1276:
(1) The guardian shall provide notice of the hearing to any living
parent of the minor by personal service at least 30 days prior to
the hearing.
(2) If either or both parents are deceased or cannot be located,
the guardian shall cause, not less than 30 days prior to the hearing,
to be served a notice of the time and place of the hearing or a copy
of the order to show cause on the child's grandparents, if living,
pursuant to Section 413.10, 414.10, 415.10, or 415.40.
SEC. 2. Section 1278 of the Code of Civil Procedure is amended to
read:
1278. (a) Except as provided in subdivisions (c) and (d), the
petition or application shall be heard at the time designated by the
court, only if objections are filed by any person who can, in those
objections, show to the court good reason against the change of name.
At the hearing, the court may examine on oath any of the
petitioners, remonstrants, or other persons, touching the petition or
application, and may make an order changing the name, or dismissing
the petition or application, as to the court may seem right and
proper.
If no objection is filed at least two court days before the date
set for hearing, the court may shall ,
without hearing, enter the order that the change of name is granted.
(b) If the provisions of subdivision (b) of Section 1277 apply,
the court shall not disclose the proposed name unless the court finds
by clear and convincing evidence that the allegations of domestic
violence or , stalking , sexual
assault, or gender identity in the petition are false.
(c) If the application for a change of name is brought as part of
an action under the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), the hearing on the
issue of the change of name shall be conducted pursuant to statutes
and rules of court governing those proceedings, whether the hearing
is conducted upon an order to show cause or upon trial.
(d) If the petition for a change of name is filed by a guardian on
behalf of a minor ward, the court shall first find that the ward is
likely to remain in the guardian's care until the age of majority and
that the ward is not likely to be returned to the custody of his or
her parents. Upon making those findings, the court shall consider the
petition and may grant the petition only if it finds that the
proposed name change is in the best interest of the child.
SEC. 3. Section 103426 is added to the Health and Safety Code, to
read:
103426. The State Registrar shall issue a new birth certificate
without a court order for any person born in this state who has
undergone clinically appropriate treatment for the purpose of gender
transition and submits directly to the State Registrar the
documentation described in subdivision (a) of Section 103430. Upon
receipt of the documentation and the fee prescribed by Section
103725, the State Registrar shall establish a new birth certificate
reflecting the person's correct sex and name, if applicable, pursuant
to subdivision (d) of Section 103430 and Sections 103440 and 103445.