BILL ANALYSIS �
AB 1403
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Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1403 (Judiciary) - As Introduced: March 12, 2013
SUBJECT : FAMILY LAW
KEY ISSUES :
1)IN ORDER TO ASSIST THE LARGE PERCENTAGE OF UNREPRESENTED
FAMILY LAW LITIGANTS, SHOULD THE UNIFORM PARENTAGE ACT BE
CLARIFIED TO REFLECT CURRENT LAW?
2)TO IMPROVE THE HANDLING OF FAMILY AND JUVENILE LAW CASES,
SHOULD THE LEGISLATURE RATIFY THE JUDICIAL COUNCIL'S
CONVERSION OF 10 SUBORDINATE JUDICIAL OFFICER POSITIONS TO
JUDGES FOR FAMILY AND JUVENILE PROCEEDINGS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This Committee bill makes two non-controversial changes to
family law. First it codifies changes to the Uniform Parentage
Act that have been firmly established by case law. While not
changing the law, these updates will help ensure that someone
reading the Family Code, particularly the vast majority of
family law litigants who today are unrepresented by counsel,
will have an accurate understanding of the law. Second, as
required by statute, the bill ratifies the Judicial Council's
authority to convert 10 subordinate judicial officers (SJOs) to
judgeships in the next year, provided those judges replace SJOs
in family or juvenile law cases. This provision seeks to
improve family and juvenile law cases by increasing the
likelihood that these matters are presided over by judges and
not subordinate judicial officers. This bill is supported by
the Association of Certified Family Law Specialists, Family Law
Section of the State Bar, Children's Advocacy Institute,
National Center for Lesbian Rights and Judicial Council. There
is no known opposition.
SUMMARY : Seeks to improve the handling of family and juvenile
law cases in our courts. Specifically, this bill :
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1)Codifies case law clarifications to the Uniform Parentage Act
(UPA), particularly making the Act's provisions gender neutral
where appropriate.
2)Ratifies the authority of the Judicial Council to convert 10
subordinate judicial officer positions (SJOs) to judgeships in
2013-14, provided the conversion of these positions will
result in judges being assigned to family or juvenile law
assignments previously presided over by a subordinate judicial
officer. Provides that this authority is in addition to the
existing authority provided to convert 16 SJOs to judges.
EXISTING LAW :
1)Establishes the California UPA. Defines a parent and child
relationship as the legal relationship existing between a
child and the child's natural or adoptive parents incident to
which the law confers or imposes rights, privileges, duties
and obligations. The term includes the mother and child
relationship and the father and child relationship. (Family
Code Section 7600 et seq. Unless stated otherwise, all
further statutory references are to that code.)
2)Defines a man as a presumed father if, among other things:
(a) He was married to the child's mother and the child was
born within 300 days of the marriage; (b) he attempted to
marry the child's mother; or (c) he holds the child out as his
own. (Section 7611.)
3)Requires that the paternity presumptions be applied gender
neutrally. (Elisa B. v. Superior Court (2005) 37 Cal.4th
108.)
4)Provides that, if two or more paternity presumptions conflict
with one another, the presumption that is founded on the
weightier considerations of policy and logic controls.
Provides that a presumption of parentage under Section 7611 is
rebutted by a judgment establishing paternity of the child by
another man. (Section 7612.)
5)Provides that paternity may be established by voluntary
declaration for unmarried parents, or through a civil action
brought by any interested party, as specified. (Sections
7630, 7570 et seq.)
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6)Provides that the Legislature shall prescribe the number of
judges and provide for the officers and employees of each
superior court. Provides that the Legislature may provide for
the trial courts to appoint officers such as commissioners to
perform subordinate judicial duties. (California
Constitution, Article VI, Sections 4, 22.)
7)Authorizes the courts to appoint subordinate judicial
officers, and sets forth their duties and titles. (Government
Code section 71622.)
8)Authorizes the conversion of 16 subordinate judicial officer
positions in eligible superior courts to judgeships each
fiscal year as specified. Authorizes the Judicial Council to
convert up to an additional 10 SJOs to judgeships each year,
upon vacancy and subsequent legislative authorization, if the
conversion of these additional positions will result in a
judge being assigned to a family or juvenile law assignment
previously presided over by a subordinate judicial officer,
but requires that such authority be ratified by the
Legislature by statutory enactment. (Government Code Sections
69615-16.)
COMMENTS : This Committee bill makes two non-controversial
changes to family law. First it codifies changes to the Uniform
Parentage Act that have been firmly established by case law.
While not changing the law, these updates will help ensure that
someone reading the Family Code, particularly the vast majority
of family law litigants who today are unrepresented by counsel,
will have an accurate understanding of the law. Second, as
required by statute, the bill ratifies the Judicial Council's
authority to convert 10 subordinate judicial officers (SJOs) to
judgeships in the next year, provided those judges replace SJOs
in family or juvenile law cases. This provision seeks to
improve family and juvenile law cases by increasing the
likelihood that these matters are presided over by judges and
not subordinate judicial officers.
UPA Update : The UPA was passed in 1975 to extend the parent and
child relationship equally to every child and to every parent,
regardless of the marital status of the parents. The UPA
defines "parent and child relationship" as "the legal
relationship existing between a child and the child's natural or
adoptive parents incident to which the law confers or imposes
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rights, privileges, duties, and obligations." The term includes
both mother and child, and father and child relationships.
Legal parenthood can be established in a number of different
ways. Under the Family Code, a man is conclusively presumed to
be the father of a child if he was married to, or in a
registered domestic partnership with, and cohabitating with the
child's mother, except as specified. A man who receives a child
into his home and holds the child out as his own is also
presumed a father of the child. While the statutory scheme uses
the word "father," the presumptions must be applied gender
neutrally, so they apply to mothers as well. (See, e.g., Elisa
B. v. Superior Court (2005) 37 Cal.4th 108.) In addition, a man
who signs a voluntary declaration of paternity is presumed to be
the legal father of a child.
This bill seeks to update statutory terms, in conformity with
case law and other statutory provisions. In particular, the
bill changes the following terms:
The term "presumed father" is changed to "presumed
parent," since that term is gender neutral and both a
mother and a father can be a presumed parent.
The terms "father" and "mother" are replaced, when
appropriate, with "parent." However, in some instances, it
is important to retain the gender distinction, and in those
situations, father and mother are left in the UPA.
The term "insemination" has been replaced with "assisted
reproduction," which is defined in Section 7606.
The term "paternity" is replaced, when appropriate, with
the term "parentage." However, the voluntary paternity
declaration, for example, retains use of the term
paternity.
It is important to note that this bill does not change all
gender specific terms. For example, the term "alleged father"
is not changed, since the law does not recognize alleged
mothers. Moreover, this bill does not change the
well-established law of parentage. Rather it just updates the
Family Code and makes it consistent with case law. These
changes will help ensure that someone reading the Family Code
will have an accurate understanding of the law.
In support of the bill, the author writes:
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The vast majority of litigants in family law cases are
unrepresented by counsel. Understanding the law and
complex legal processes are hard enough for these parties,
but when statutes do not reflect our actual laws, it is
nearly impossible for them to adequately represent
themselves.
The UPA sets forth how the relationships between parents
and their children are legally established. Unfortunately,
while the California Supreme Court has determined that our
parentage laws can recognize parents of the same gender,
our statutes have not been updated, so anyone reading just
the statutes would not understand the law. Unrepresented
family law litigants have an especially hard time
understanding these laws when our code provisions don't
reflect our laws.
Consistent with the law as established by the California
Supreme Court and the Courts of Appeal, this bill clarifies
and updates the UPA to reflect the actual law that applies.
In particular, this bill makes the UPA, consistent with
well-established case law, gender neutral, recognizing that
a woman can be a presumed parent and that a child may have
more than one parent of the same sex.
The Association of Certified Family Law Specialists, which has
600 members, adds that they have "carefully examined the bill in
light of current law, and are satisfied the bill serves only to
neutralize gender terms where appropriate."
Subordinate Judicial Officer Conversions : This bill seeks to
improve family and juvenile law cases by ratifying the Judicial
Council's authority to convert 10 SJOs to judgeships in 2013-14,
provided the conversion of these positions will result in a
judge being assigned to a family or juvenile law assignment
previously presided over by a subordinate judicial officer.
This will increase the likelihood that these matters will be
presided over by judges and not subordinate judicial officers.
According to the Judicial Council, historically, SJO positions
were created and funded at the county level to address courts'
needs for judicial-like resources when new judgeships were
pending or not yet authorized by the Legislature. Unlike
judges, SJOs are not directly accountable to the public, but due
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to the shortages of judges, are performing some of the most
complex and sensitive judicial duties. Conversion of these
positions to judgeships when they become vacant makes them more
accountable to the public and, the author contends, helps
provide better trust and confidence in the courts.
In 2007, AB 159 (Jones, Chapter 722) was enacted to address a
severe shortage in the number of trial court judgeships. At
that time, the Judicial Council noted potentially serious
consequences flowing from this deficiency in judicial resources,
including a significant decrease in Californians' access to the
courts, compromised public safety, an unstable business climate,
and enormous backlogs in some courts that inhibit fair, timely
and equitable justice. That bill, in addition to authorizing 50
additional judges, authorized the conversion of 162 SJOs, upon
vacancy, to judgeships to utilize the judicial resources more
efficiently and properly limit SJOs to subordinate judicial
duties. The stated findings and declarations supporting the
legislation included the following:
It is the intent of the Legislature in enacting this
section to restore an appropriate balance between
subordinate judicial officers and judges in the trial
courts by providing for the conversion, as needed, of
subordinate judicial officer positions to judgeships in
courts that assign subordinate judicial officers to act as
temporary judges. The Legislature finds that these
positions must be converted to judgeships in order to
ensure that critical case types, including family, probate,
and juvenile law matters, can be heard by judges.
(Government Code section 69615.)
In 2002 the Judicial Council identified family and juvenile law
matters among those that are of such a nature as to require
judges, rather than SJOs, to preside over them whenever
possible. This Council policy has been echoed repeatedly.
Among its many recommendations, the Blue Ribbon Commission on
Children in Foster Care recommended that: "Consistent with
Judicial Council policy, judges-not subordinate judicial
officers-hear dependency and delinquency cases. Pending a full
transition from subordinate judicial officers to judges (through
reassignment or conversion of subordinate judicial officer
positions to judgeships), presiding judges should continue the
assignment of well-qualified and experienced subordinate
judicial officers to juvenile court."
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Recognizing the particular need for judges in family and
juvenile law cases, AB 2763 (Judiciary), Chap. 690, Stats. 2010,
authorized the Judicial Council to convert up to an additional
10 SJOs to judgeships each year, if the conversion of these
additional positions will result in a judge being assigned to a
family or juvenile law assignment previously presided over by an
SJO. However, such authorization must be ratified by the
Legislature. This was done by the Legislature in 2011-12. (SB
405 (Corbett), Chap. 705, Stats. 2011.) This bill seeks to
provide the Judicial Council with that same ratification for
2013-14.
In support of this part of the bill, the Judicial Council
states:
Over the years, in the face of few or no new judgeships
being created, courts have had to hire SJOs simply to meet
the demands of their workload. As a result, these SJOs
have not simply been assigned to perform subordinate
judicial duties, but in many cases they are assigned as
temporary judges, possessing the full power of judges. The
Judicial Council believes that family law and juvenile law
cases, among the courts' most sensitive and often most
complex, should be assigned to judges whenever possible.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of Certified Family Law Specialists
Children's Advocacy Institute
Family Law Section of the State Bar
National Center for Lesbian Rights
Judicial Council
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
AB 1403
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