California Legislature—2015–16 Regular Session

Assembly Bill No. 2882

Introduced by Committee on Judiciary (Assembly Members Mark Stone (Chair), Alejo, Chau, Chiu, Cristina Garcia, and Holden)

February 25, 2016

An act to amend Sections 302, 304, 306.5, 308, 360, 500, and 8714 of the Family Code, to add Section 69619.5 to the Government Code, and to amend Section 361 of the Welfare and Institutions Code, relating to family law.

LEGISLATIVE COUNSEL’S DIGEST

AB 2882, as introduced, Committee on Judiciary. Judiciary omnibus: family law.

(1) Existing law provides that an unmarried person under 18 years of age is capable of consenting to and consummating marriage upon obtaining a court order granting permission of the underage person or persons to marry. Existing law requires the court order and written consent of the parents of each underage person, or of one of the parents or the guardian of each underage person, to be filed with the clerk of the court, and requires a certified copy of the order to be presented to the county clerk at the time the marriage license is issued.

This bill would instead require the court order and written consent of at least one of the parents or the guardian of each underage person to be filed with the clerk of the court.

Existing law provides that parties to a marriage are not required to have the same name. Existing law provides that one party or both parties to a marriage may elect to change the middle or last names, or both, by which that party wishes to be known after solemnization of the marriage, and authorizes a person to adopt any of the specified last names and middle names, including a hyphenated combination of last names and a hyphenated combination of the current middle name and current last name of the person or spouse or a hyphenated combination of the current middle name and the last name given at birth of the person or spouse.

The bill would instead authorize a person to adopt a combination of last names, and a combination of the current middle name and the current last name of the person or spouse or a combination of the current middle name and the last name given at birth of the person or spouse.

Existing law requires the person solemnizing the marriage to obtain a duplicate marriage license, if a marriage license is lost, damaged, or destroyed after the marriage ceremony, but before it is returned to the county recorder, or deemed unacceptable for registration by the county recorder. Existing law prohibits the duplicate marriage license from being issued later than one year after the issuance of the original license and requires the license to be returned by the person solemnizing the marriage to the county recorder within one year of the issuance date shown on the original license.

The bill would instead prohibit the duplicate marriage license from being issued later than one year after the date of marriage, and would require the license be returned by the person solemnizing the marriage to the county recorder within one year of the date of marriage.

(2) Existing law authorizes a person desiring to adopt a nondependent child to file an adoption request in an authorized county. Under existing law, a petition for adoption of a nondependent child may be filed in specified locations, including the county in which the petitioner resides or where the adoption agency, department, or public adoption agency is located. If a child has been adjudged to be a dependent of the juvenile court, and thereafter has been freed for adoption by the juvenile court, existing law authorizes the petition to be filed in either the county where the petitioner resides or in the county where the child was freed for adoption.

The bill would instead provide that a petitioner desiring to adopt a dependent child who is freed for adoption by the juvenile court and with whom that dependent child is placed for adoption may file the adoption request either in the county where the petitioner resides or in the county where the child was freed for adoption.

(3) Existing law authorizes the court to limit the control to be exercised over a dependent child by any parent or guardian and requires the court, by its order, to clearly and specifically set forth all those limitations in all cases in which a minor is adjudged to be a dependent child of the court. Existing law provides that the court’s authority does not limit the ability of a parent to voluntarily relinquish his or her child to the State Department of Social Services, to a county adoption agency, or to a licensed private adoption agency at any time while the child is the subject of a petition to declare him or her a dependent child, if the department, county adoption agency, or licensed private adoption agency is willing to accept the relinquishment. When accepting the relinquishment of a child subject to a petition to declare him or her a dependent child, existing law requires a licensed private adoption agency to file with the court one original and 10 copies of a request to approve the relinquishment within 5 court days of accepting the relinquishment.

The bill would instead require a licensed private adoption agency, or allow another party or that party’s counsel, to file with the court one original and 5 copies of a request to approve the relinquishment within 10 court days of accepting the relinquishment.

(4) Existing law specifies the number of judges of the superior court for each county, and allocates additional judgeships to the various counties in accordance with uniform standards for factually determining additional need in each county, as approved by the Judicial Council, and other specified criteria. Existing law provides for the conversion of 146 subordinate judicial officer positions in eligible superior courts upon the occurrence of specified conditions, including that the proposed action is ratified by the Legislature, except that no more than 16 positions may be converted to judgeships in any fiscal year. Notwithstanding this provision, existing law authorizes up to 10 additional subordinate judicial officer positions to be converted to judgeships in any fiscal year if the conversions will result in a judge being assigned to a family law or juvenile law assignment previously presided over by a subordinate judicial officer and the proposed action is ratified by the Legislature.

This bill would ratify the authority of the Judicial Council to convert 10 subordinate judicial officer positions to judgeships in the 2016-17 fiscal year when the conversion will result in a judge being assigned to a family law or juvenile law assignment previously presided over by a subordinate judicial officer.

(5) The bill would delete an obsolete provision, and make other nonsubstantive changes.

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 302 of the Family Code is amended to
read:

302.  

(a) An unmarried person under 18 years of age is capable
of consenting to and consummating marriage upon obtaining a
court order granting permission to the underage person or persons
to marry.

(b) The court order and written consent of begin delete the parents of each
underage person, or of end delete begin insert at least end insert one of the parents or the guardian
of each underage person shall be filed with the clerk of the court,
and a certified copy of the order shall be presented to the county
clerk at the time the marriage license is issued.

SEC. 2.  

Section 304 of the Family Code is amended to read:

304.  

As part of the court order granting permission to marry
under Section 302 or 303, the court begin delete shall end delete begin insert shall, if it considers it
necessary, end insert require the parties to the prospective marriage of a
minor to participate in premarital counseling concerning social,
economic, and personal responsibilities incident to begin delete marriage, if
the court considers the counseling to be necessary. end delete begin insert marriage. end insert The
parties shall not be required, without their consent, to confer with
counselors provided by religious organizations of any
denomination. In determining whether to order the parties to
participate in the premarital counseling, the court shall consider,
among other factors, the ability of the parties to pay for the
counseling. The court may impose a reasonable fee to cover the
cost of any premarital counseling provided by the county or the
court. The fees shall be used exclusively to cover the cost of the
counseling services authorized by this section.

SEC. 3.  

Section 306.5 of the Family Code is amended to read:

306.5.  

(a) Parties to a marriage shall not be required to have
the same name. Neither party shall be required to change his or
her name. A person’s name shall not change upon marriage unless
that person elects to change his or her name pursuant to subdivision
(b).

(b) (1) One party or both parties to a marriage may elect to
change the middle or last names, or both, by which that party
wishes to be known after solemnization of the marriage by entering
the new name in the spaces provided on the marriage license
application without intent to defraud.

(2) A person may adopt any of the following last names pursuant
to paragraph (1):

(A) The current last name of the other spouse.

(B) The last name of either spouse given at birth.

(C) A name combining into a single last name all or a segment
of the current last name or the last name of either spouse given at
birth.

(D) A begin delete hyphenated end delete combination of last names.

(3) A person may adopt any of the following middle names
pursuant to paragraph (1):

(A) The current last name of either spouse.

(B) The last name of either spouse given at birth.

(C) A begin delete hyphenated end delete combination of the current middle name and
the current last name of the person or spouse.

(D) A begin delete hyphenated end delete combination of the current middle name and
the last name given at birth of the person or spouse.

(4) (A) An election by a person to change his or her name
pursuant to paragraph (1) shall serve as a record of the name
change. A certified copy of a marriage certificate containing the
new name, or retaining the former name, shall constitute proof
that the use of the new name or retention of the former name is
lawful.

(B) A certified copy of a marriage certificate shall be accepted
as identification establishing a true, full name for purposes of
Section 12800.7 of the Vehicle Code.

(C) Nothing in this section shall be construed to prohibit the
Department of Motor Vehicles from accepting as identification
other documents establishing a true, full name for purposes of
Section 12800.7 of the Vehicle Code. Those documents may
include, without limitation, a certified copy of a marriage certificate
recording a marriage outside of this state.

(D) This section shall be applied in a manner consistent with
the requirements of Sections 1653.5 and 12801 of the Vehicle
Code.

(5) The adoption of a new name, or the choice not to adopt a
new name, by means of a marriage license application pursuant
to paragraph (1) shall only be made at the time the marriage license
is issued. After a marriage certificate is registered by the local
registrar, the certificate begin delete may end delete begin insert shall end insert not be amended to add a new
name or change the name adopted pursuant to paragraph (1). An
amendment may be issued to correct a clerical error in the new
name fields on the marriage license. In this instance, the
amendment begin delete must end delete begin insert shall end insert be signed by one of the parties to the
marriage and the county clerk or his or her deputy, and the reason
for the amendment begin delete must end delete begin insert shall end insert be stated as correcting a clerical
error. A clerical error as used in this part is an error made by the
county clerk, his or her deputy, or a notary authorized to issue
confidential marriage licenses, whereby the information shown in
the new name field does not match the information shown on the
marriage license application. This requirement shall not abrogate
the right of either party to adopt a different name through usage
at a future date, or to petition the superior court for a change of
name pursuant to Title 8 (commencing with Section 1275) of Part
3 of the Code of Civil Procedure.

(c) Nothing in this section shall be construed to abrogate the
common law right of any person to change his or her name, or the
right of any person to petition the superior court for a change of
name pursuant to Title 8 (commencing with Section 1275) of Part
3 of the Code of Civil Procedure.

begin delete

(d) This section shall become operative on January 1, 2009.

end delete

SEC. 4.  

Section 308 of the Family Code is amended to read:

308.  

A marriage contracted outside this state that would be
valid by laws of the jurisdiction in which the marriage was
contracted is valid in begin delete this state. end delete begin insert California. end insert

SEC. 5.  

Section 360 of the Family Code is amended to read:

360.  

(a) If a marriage license is lost, damaged, or destroyed
after the marriage ceremony, but before it is returned to the county
recorder, or deemed unacceptable for registration by the county
recorder, the person solemnizing the marriage, in order to comply
with Section 359, shall obtain a duplicate marriage license by filing
an affidavit setting forth the facts with the county clerk of the
county in which the license was issued.

(b) The duplicate marriage license begin delete may end delete begin insert shall end insert not be issued later
than one year after begin delete issuance of the original license end delete begin insert the date of
marriage end insert and shall be returned by the person solemnizing the
marriage to the county recorder within one year of the begin delete issuance
date shown on the original marriage license. end delete begin insert date of marriage. end insert

(c) The county clerk may charge a fee to cover the actual costs
of issuing a duplicate marriage license.

(d) If a marriage license is lost, damaged, or destroyed before
a marriage ceremony takes place, the applicants shall purchase a
new marriage license and the old license shall be voided.

SEC. 6.  

Section 500 of the Family Code is amended to read:

500.  

When two unmarried people, not minors, have been living
together as spouses, they may be married pursuant to this chapter
by a person authorized to solemnize a marriage under Chapter 1
(commencing with Section 400) of Part begin delete 3, without the necessity
of first obtaining health certificates. end delete begin insert 3. end insert

SEC. 7.  

Section 8714 of the Family Code is amended to read:

8714.  

(a) A person desiring to adopt a begin insert nondependent end insert child
may for that purpose file an adoption request in a county authorized
by Section 8609.5. begin delete If a end delete begin insert A person desiring to adopt a end insert child begin insert who end insert has
been adjudged to be a dependent of the juvenile court pursuant to
Section 300 of the Welfare and Institutions Code, begin delete and has thereafter
been end delete freed for adoption by the juvenile court, begin delete the petition may be
filed end delete begin insert and placed for adoption with the petitioner, may file the
adoption request end insert either in the county where the petitioner resides
or in the county where the child was freed for adoption.

(b) The court clerk shall immediately notify the department at
Sacramento in writing of the pendency of the proceeding and of
any subsequent action taken.

(c) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached
to and filed with the petition for adoption under subdivision (a).

(d) The caption of the adoption petition shall contain the names
of the petitioners, but not the child’s name. The petition shall state
the child’s sex and date of birth. The name the child had before
adoption shall appear in the joinder signed by the licensed adoption
agency.

(e) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall
notify the court of any petition for guardianship or temporary
guardianship filed after the adoption petition. The guardianship
proceeding shall be consolidated with the adoption proceeding.

(f) The order of adoption shall contain the child’s adopted name,
but not the name the child had before adoption.

SEC. 8.  

Section 69619.5 is added to the Government Code, to
read:

69619.5.  

(a) The Legislature hereby ratifies the authority of
the Judicial Council to convert 10 subordinate judicial officer
positions to judgeships in the 2016-17 fiscal year when the
conversion will result in a judge being assigned to a family law or
juvenile law assignment previously presided over by a subordinate
judicial officer, pursuant to subparagraph (C) of paragraph (1) of
subdivision (c) of Section 69615.

(b) The action described in subdivision (a) shall be in addition
to any action that may be taken pursuant to the authority described
in subparagraph (B) of paragraph (1) of subdivision (c) of Section
69615 to convert up to 16 subordinate judicial officer positions to
judgeships.

SEC. 9.  

Section 361 of the Welfare and Institutions Code is
amended to read:

361.  

(a) (1) In all cases in which a minor is adjudged a
dependent child of the court on the ground that the minor is a
person described by Section 300, the court may limit the control
to be exercised over the dependent child by any parent or guardian
and shall by its order clearly and specifically set forth all those
limitations. Any limitation on the right of the parent or guardian
to make educational or developmental services decisions for the
child shall be specifically addressed in the court order. The
limitations may not exceed those necessary to protect the child. If
the court specifically limits the right of the parent or guardian to
make educational or developmental services decisions for the child,
or, for the nonminor dependent, if the court finds the appointment
of a developmental services decisionmaker to be in the best
interests of the nonminor dependent, the court shall at the same
time appoint a responsible adult to make educational or
developmental services decisions for the child or nonminor
dependent until one of the following occurs:

(A) The minor reaches 18 years of age, unless the child or
nonminor dependent chooses not to make educational or
developmental services decisions for himself or herself, or is
deemed by the court to be incompetent.

(B) Another responsible adult is appointed to make educational
or developmental services decisions for the minor pursuant to this
section.

(C) The right of the parent or guardian to make educational or
developmental services decisions for the minor is fully restored.

(D) A successor guardian or conservator is appointed.

(E) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) of subdivision (g) of Section
366.21, Section 366.22, Section 366.26, or subdivision (i) of
Section 366.3, at which time, for educational decisionmaking, the
foster parent, relative caretaker, or nonrelative extended family
member as defined in Section 362.7, has the right to represent the
child in educational matters pursuant to Section 56055 of the
Education Code, and for decisions relating to developmental
services, unless the court specifies otherwise, the foster parent,
relative caregiver, or nonrelative extended family member of the
planned permanent living arrangement has the right to represent
the child or nonminor dependent in matters related to
developmental services.

(2) An individual who would have a conflict of interest in
representing the child or nonminor dependent shall not be
appointed to make educational or developmental services decisions.
For purposes of this section, “an individual who would have a
conflict of interest” means a person having any interests that might
restrict or bias his or her ability to make educational or
developmental services decisions, including, but not limited to,
those conflicts of interest prohibited by Section 1126 of the
Government Code, and the receipt of compensation or attorney’s
fees for the provision of services pursuant to this section. A foster
parent shall not be deemed to have a conflict of interest solely
because he or she receives compensation for the provision of
services pursuant to this section.

(3) If the court limits the parent’s educational rights pursuant
to this subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child who is available and
willing to serve as the child’s educational representative before
appointing an educational representative or surrogate who is not
known to the child.

If the court cannot identify a responsible adult who is known to
the child and available to make educational decisions for the child,
subparagraphs (A) to (E), inclusive, of paragraph (1) do not apply,
and the child has either been referred to the local educational
agency for special education and related services, or has a valid
individualized education program, the court shall refer the child
to the local educational agency for appointment of a surrogate
parent pursuant to Section 7579.5 of the Government Code.

If the court cannot identify a responsible adult to make
educational decisions for the child, the appointment of a surrogate
parent as defined in subdivision (a) of Section 56050 of the
Education Code is not warranted, and there is no foster parent to
exercise the authority granted by Section 56055 of the Education
Code, the court may, with the input of any interested person, make
educational decisions for the child.

(4) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to access
the child’s or nonminor dependent’s information and records
pursuant to subdivision (u) of Section 4514 and subdivision (y) of
Section 5328, and to act on the child’s or nonminor dependent’s
behalf for the purposes of the individual program plan process
pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing
process pursuant to Chapter 7 (commencing with Section 4700)
of Division 4.5, and as set forth in the court order.

If the court cannot identify a responsible adult to make
developmental services decisions for the child or nonminor
dependent, the court may, with the input of any interested person,
make developmental services decisions for the child or nonminor
dependent. If the child is receiving services from a regional center,
the provision of any developmental services related to the court’s
decision must be consistent with the child’s or nonminor
dependent’s individual program plan and pursuant to the provisions
of the Lanterman Developmental Disabilities Services Act
(Division 4.5 (commencing with Section 4500)).

(5) All educational and school placement decisions shall seek
to ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child. If an educational
representative or surrogate is appointed for the child, the
representative or surrogate shall meet with the child, shall
investigate the child’s educational needs and whether those needs
are being met, and shall, prior to each review hearing held under
this article, provide information and recommendations concerning
the child’s educational needs to the child’s social worker, make
written recommendations to the court, or attend the hearing and
participate in those portions of the hearing that concern the child’s
education.

(6) Nothing in this section in any way removes the obligation
to appoint surrogate parents for students with disabilities who are
without parental representation in special education procedures as
required by state and federal law, including Section 1415(b)(2) of
Title 20 of the United States Code, Section 56050 of the Education
Code, Section 7579.5 of the Government Code, and Rule 5.650
of the California Rules of Court.

(b) (1) Subdivision (a) does not limit the ability of a parent to
voluntarily relinquish his or her child to the State Department of
Social Services, to a county adoption agency, or to a licensed
private adoption agency at any time while the child is the subject
of a petition to declare him or her, or is, a dependent child of the
juvenile court, if the department, county adoption agency, or
licensed private adoption agency is willing to accept the
relinquishment.

(2) When accepting the relinquishment of a child described in
paragraph (1), the department or a county adoption agency shall
comply with Section 8700 of the Family Code and, within five
court days of accepting the relinquishment, shall file written notice
of that fact with the court and all parties to the case and their
counsel.

(3) When accepting the relinquishment of a child described in
paragraph (1), a licensed private adoption agency shall comply
with Section 8700 of the Family Code and, within begin delete five end delete begin insert 10 end insert court
days of accepting the relinquishment, shall file begin insert or allow another
party or that party’s counsel to file end insert with the court one original and
begin delete 10 end delete begin insert five end insert copies of a request to approve the relinquishment. The clerk
of the court shall file the request under seal, subject to examination
only by the parties and their counsel or by others upon court
approval. If the request is accompanied by the written agreement
of all parties, the court may issue an ex parte order approving the
relinquishment. Unless approved pursuant to that agreement, the
court shall set the matter for hearing no later than 10 court days
after filing, and shall provide notice of the hearing to all parties
and their counsel, and to the licensed private adoption agency and
its counsel. The licensed private adoption agency and any
prospective adoptive parent or parents named in the relinquishment
shall be permitted to attend the hearing and participate as parties
regarding the strictly limited issue of whether the court should
approve the relinquishment. The court shall issue an order
approving or denying the relinquishment within 10 court days after
the hearing.

(c) A dependent child shall not be taken from the physical
custody of his or her parents or guardian or guardians with whom
the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence of any of the
following circumstances listed in paragraphs (1) to (5), inclusive,
and, in an Indian child custody proceeding, paragraph (6):

(1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s
or guardian’s physical custody. The fact that a minor has been
adjudicated a dependent child of the court pursuant to subdivision
(e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent
or guardian with whom the minor resided at the time of injury.
The court shall consider, as a reasonable means to protect the
minor, each of the following:

(A) The option of removing an offending parent or guardian
from the home.

(B) Allowing a nonoffending parent or guardian to retain
physical custody as long as that parent or guardian presents a plan
acceptable to the court demonstrating that he or she will be able
to protect the child from future harm.

(2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that if the minor remains out of their physical custody for
the period specified in Section 366.26, the minor may be declared
permanently free from their custody and control.

(3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others, and there are no
reasonable means by which the minor’s emotional health may be
protected without removing the minor from the physical custody
of his or her parent or guardian.

(4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by
a parent, guardian, or member of his or her household, or other
person known to his or her parent, and there are no reasonable
means by which the minor can be protected from further sexual
abuse or a substantial risk of sexual abuse without removing the
minor from his or her parent or guardian, or the minor does not
wish to return to his or her parent or guardian.

(5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other adult
custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child and
the whereabouts of the parent is unknown and reasonable efforts
to locate him or her have been unsuccessful.

(6) In an Indian child custody proceeding, continued custody
of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child, and that finding
is supported by testimony of a “qualified expert witness” as
described in Section 224.6.

(A) Stipulation by the parent, Indian custodian, or the Indian
child’s tribe, or failure to object, may waive the requirement of
producing evidence of the likelihood of serious damage only if the
court is satisfied that the party has been fully advised of the
requirements of the federal Indian Child Welfare Act (25 U.S.C.
Sec. 1901 et seq.), and has knowingly, intelligently, and voluntarily
waived them.

(B) Failure to meet non-Indian family and child-rearing
community standards, or the existence of other behavior or
conditions that meet the removal standards of this section, will not
support an order for placement in the absence of the finding in this
paragraph.

(d) The court shall make a determination as to whether
reasonable efforts were made to prevent or to eliminate the need
for removal of the minor from his or her home or, if the minor is
removed for one of the reasons stated in paragraph (5) of
subdivision (c), whether it was reasonable under the circumstances
not to make any of those efforts, or, in the case of an Indian child
custody proceeding, whether active efforts as required in Section
361.7 were made and that these efforts have proved unsuccessful.
The court shall state the facts on which the decision to remove the
minor is based.

(e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:

(1) The minor has been taken from the custody of his or her
parent or guardian and has been living in an out-of-home placement
pursuant to Section 319.

(2) The minor has been living in a voluntary out-of-home
placement pursuant to Section 16507.4.