BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 917 (Jackson) - Family law: court orders
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|Version: March 30, 2016 |Policy Vote: JUD. 6 - 0 |
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|Urgency: No |Mandate: No |
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|Hearing Date: April 25, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 917 would require the court, at the conclusion of
any family law hearing, to provide the parties with a written
order setting forth the basic terms of any orders made in open
court during that hearing, and would additionally require the
Judicial Council to adopt a rule of court and any forms
necessary to implement the provisions of the bill by January 1,
2018.
Fiscal
Impact: Major costs, potentially in the millions of dollars
(General Fund*) for case management systems and system upgrades
in order to enable the trial courts to provide a written order
at the conclusion of each family law hearing. Although a few
courts provide access to a copy of orders within one day, it is
not known if there are any courts that currently comply with the
requirements specified in this the bill. Given the 58 counties
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likely employ different systems for conducting family law
proceedings, costs for compliance could vary widely.
*Trial Court Trust Fund
Background: Existing law authorizes a court to prepare an order after a
hearing and serve copies on the parties or their attorneys or
order a party to prepare an order. Alternatively, the court may
order one of the parties or attorneys to prepare the proposed
order as provided in the rules of court. Under existing law,
timelines and procedures for the preparation and service of
orders are provided but additionally authorize courts to modify
those timelines or procedures when appropriate to the case.
(California Rules of Court, rule 5.125.)
As described in the Senate Committee on Judiciary analysis of
this measure:
Procedures and timelines in California courts vary
significantly from county to county because of geography,
funding, local practices, and the unique needs of different
populations. In some counties (e.g., Fresno, Sacramento,
Ventura, and Santa Barbara) litigants have access to a copy
of orders that same day, while in other counties it may
take weeks before a party receives a written order in the
mail. Orders given verbally in court (i.e., custody and
visitation orders) have immediate effect, meaning any delay
in receiving a copy of that order increases the chance that
parties will be unclear to the specifics of the order they
are legally obligated to follow.
Staff notes that parties who receive written orders in a
timely manner may benefit from the aid of law enforcement
in the enforcing of those orders. For many families, when
one parent refuses to abide by a court's visitation or
custody order, the immediate solution available is to call
on law enforcement to assist in the enforcement of that
order. Without a written order, law enforcement cannot
help, and the parent's only legal recourse is to wait for
another court date. In many cases, the parent feels as
though any delay will put their child at risk of
maltreatment or abduction.
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By many estimates, nearly 80 percent of family law
litigants appear in court without the representation of an
attorney. These self-represented litigants, or pro pers,
are disproportionately affected by any delays in receiving
orders from the court. Represented litigants have counsel
that often insist on court reporters, at the litigants'
expense, to ensure that there is a record for clarity's
sake. Represented litigants also have an attorney with whom
they can debrief after hearings to address any questions or
concerns.
This bill seeks to ensure that all litigants are afforded the
opportunity and ability to understand and adhere to orders made
at family law hearings in a timely manner.
Proposed Law:
This bill would require the court, at the conclusion of a
hearing conducted pursuant to the Family Code, to provide each
party present at the hearing with a written order setting forth
the basic terms of any orders that were made in open court
during the hearing. Additionally, this bill:
Provides this section does not require the court to
prepare or provide a judgment of dissolution, legal
separation, nullity, or parentage.
Provides this section is not intended to impact the law
governing statements of decisions.
Provides this section does not preclude the court from
requiring parties or counsel to prepare an order, or
accepting proposed orders or stipulations for orders from
the parties or counsel at the time of the hearing.
Provides the court may, after providing the written
order, permit parties or counsel to submit more detailed
orders after the hearing.
Requires, on or before July 1, 2018, the Judicial
Council to adopt a rule of court or any forms necessary to
implement this section.
Related
Legislation: AB 1834 (Wagner) 2016 would allow a court to use
electronic recording equipment in a family law case if an
official reporter or an official reporter pro tempore is
unavailable. This bill is pending hearing in the Assembly
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Judiciary Committee.
Prior Legislation: AB 2089 (Quirk) Chapter 635/2014 made
various changes to the Domestic Violence Prevention Act,
including requiring the court to provide a brief statement of
the reasons for its denial of a restraining order either in
writing or on the record.
Staff
Comments: By requiring the provision of a written order at the
conclusion of a family law hearing to each party, this bill
could potentially require the courts to incur significant costs
to make modifications to existing systems in order to provide
this service in the manner specified in the bill. Because courts
are administered at the county level, there are 58 different
systems conducting family law proceedings, and while the bill
does not mandate a uniform statewide process to implement the
bill's provisions, the costs for each county's courts to comply
would likely vary widely.
As an example of one innovative court process, Sacramento County
has implemented a Five-Minute Findings and Orders After Hearing
(FOAH) program enabling litigants, including self-represented
litigants, to receive orders online on the same day as the
hearing, sometimes within minutes of the conclusion of the
hearing. The FOAH program requires parties to obtain a secure
log-in password from the court clerk to enable access to the
applicable account and copy of the order. The FOAH program,
however, is electronic, and would not technically meet the
method or timing requirements of the provision of a written
order at the conclusion of the hearing.
To the extent the bill's provisions could be broadened to
provide more flexibility to the courts could serve to reduce the
potential fiscal impacts of this measure, while still improving
the process of providing litigants with the services and support
they require.
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