BILL NUMBER: AB 2801 CHAPTERED
BILL TEXT
CHAPTER 581
FILED WITH SECRETARY OF STATE SEPTEMBER 18, 1998
APPROVED BY GOVERNOR SEPTEMBER 17, 1998
PASSED THE ASSEMBLY AUGUST 25, 1998
PASSED THE SENATE AUGUST 20, 1998
AMENDED IN SENATE AUGUST 5, 1998
AMENDED IN SENATE JUNE 30, 1998
INTRODUCED BY Committee on Judiciary (Escutia (Chair), Alby,
Aroner, Baugh, Figueroa, Hertzberg, Kaloogian, Keeley, Kuehl,
Martinez, Morrow, Ortiz, Pacheco, and Shelley)
MARCH 9, 1998
An act to amend Sections 366.2, 527.6, and 527.8 of the Code of
Civil Procedure, to amend Sections 2020, 2101, 2103, 2104, 2105,
2106, 2110, 2330, 2330.1, 2336, 2337, 4055, 6203, 6380, and 7541 of
the Family Code, and to amend Sections 810, 811, 1826, 2620, 2640,
8250, and 8271 of the Probate Code, relating to civil proceedings.
LEGISLATIVE COUNSEL'S DIGEST
AB 2801, Committee on Judiciary. Civil proceedings: dissolution
of marriage: harassment: conservatorships and probate.
(1) Existing law prescribes the procedures for dissolution of
marriage or legal separation of the parties. Among other things,
these provisions specify the contents of a petition for dissolution
of marriage or legal separation of the parties, and require each
party to serve on the other party declarations of disclosure
regarding their income and property. In the case of a default
judgment, a petitioner is authorized to waive requirements with
respect to the final declaration of disclosure, as specified.
This bill would specify that in the case of a default judgment, a
petitioner shall not be required to serve or receive a final
declaration of disclosure. The bill would revise the contents of a
petition for dissolution of marriage or legal separation of the
parties, require the parties to file with the court proof of service
for each declaration of disclosure served, and define an income and
expense declaration to include forms approved by the Judicial Council
and other forms, as specified. The bill would make other related
changes.
(2) Existing law specifies the method for calculating child
support. That formula is based, in part, on the percentage of time
the high earner has or will have primary physical responsibility for
the children compared to the other parent. In any proceeding for
child support where a party fails to appear, and in certain default
proceedings, existing law deems that percentage to be in favor of the
custodial parent, regardless of which party is the defaulting party,
where there is no evidence presented demonstrating the percentage of
time that the noncustodial parent has primary physical
responsibility for the children.
This bill would provide that in any proceeding for child support
where a party fails to appear, and in certain default proceedings,
the percentage described above with respect to the calculation of
child support shall not apply if the custodial parent is the
defaulting party, as specified.
(3) Existing law, known as the Domestic Violence Prevention Act,
defines "abuse" to mean, among other things, intentionally or
recklessly causing bodily injury, or sexual assault.
This bill would add to that definition any act that has been or
could be enjoined by ex parte order as specified in the act.
(4) Under existing law, a judicial determination that a person
lacks legal capacity to perform specified acts must be based on
evidence of a mental function deficit rather than on a diagnosis of a
mental or physical disorder.
This bill would (a) declare that there is a rebuttable presumption
affecting the burden of proof that all persons have legal capacity
to make decisions and be responsible for their acts and (b) require
that a judicial determination of lack of capacity be supported by
evidence of a correlation between the person's mental function
deficit and the decisions or acts in question.
(5) Existing law defines the duties of court investigators in
conservatorship proceedings and includes in those duties the
obligation to review the petition and specified information provided
by the petitioner to determine why a conservator is required.
This bill would additionally require the investigator, in making
that determination, to consider, if practicable, whether the proposed
conservatee suffers from a mental function deficit. The bill would
also allow the court to order that an investigation is not necessary,
or may be limited, if an investigation has been performed within the
past 6 months. Because this bill would impose new duties on court
investigators, it would create a state-mandated local program.
(6) Under existing law, the child of a wife cohabiting with her
husband who is not impotent or sterile is presumed to be a child of
the marriage, except where the court finds, based on blood tests,
that the husband is not the father of the child. This exception is
not applicable in cases where the child was conceived, with the
consent of the husband, by artificial insemination or a surgical
procedure.
This bill would additionally specify that blood tests may not be
used to challenge paternity in those cases.
(7) Existing law prescribes the procedures for the issuance and
service of a summons in a will contest or a proceeding for revocation
of probate.
This bill would specify that the summons and objection in a will
contest shall be issued and served in the same manner as a summons
and complaint in civil actions and would require that the summons in
a proceeding for revocation of probate be served with a copy of the
petition.
(8) Existing law allows any person who has suffered harassment to
seek a temporary restraining order and injunction, as specified, and
defines "harassment" as a knowing and willful course of conduct, as
defined, directed at a specific person that seriously alarms, annoys,
or harasses the person and that serves no legitimate purpose.
Existing law requires that the defendant be served with a copy of the
petition for an injunction within the earlier of 5 days after the
temporary restraining order is issued or 2 days before the hearing,
or a shorter time if ordered by the court for good cause. Violation
of such an order is a misdemeanor. Existing law requires counties to
transmit specified data to the Department of Justice when certain
orders, including temporary restraining orders or injunctions
relating to domestic violence, are issued.
This bill would expand the definition of "harassment" to include
unlawful violence, as defined, and a credible threat of violence, as
defined, and would add specific examples to the definition of "course
of conduct." The bill would give the court discretion, upon good
cause shown, to include in the temporary restraining order other
named persons residing with the petitioner and require that the
defendant be served with a copy of the petition for an injunction at
least 5 days before the hearing or a shorter time if ordered by the
court for good cause. The bill would also add temporary restraining
orders and injunctions relating to harassment to the list of orders
subject to the Department of Justice data reporting requirement.
(9) Existing law also allows any employer, whose employee has
suffered unlawful violence, as defined, or a credible threat thereof,
as defined, to seek a temporary restraining order or injunction on
behalf of the employee as specified.
This bill would modify the definition of "credible threat of
violence"; give the court discretion, upon good cause shown, to
include in the temporary restraining order other named persons
residing with the employee; and require that the defendant be served
with a copy of the petition for an injunction at least 5 days before
the hearing, or a shorter time if ordered by the court for good
cause.
(10) The bill would make related changes.
(11) This bill would create state-mandated local programs by
imposing new duties on local officers and expanding the scope of a
crime.
(12) This bill would incorporate additional changes to Section
6380 of the Family Code made by AB 1531, AB 2177, and SB 1682, to be
operative if this bill and one or more of the other bills are enacted
and become effective on or before January 1, 1999, and this bill is
enacted last.
(13) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 366.2 of the Code of Civil Procedure is amended
to read:
366.2. (a) If a person against whom an action may be brought on a
liability of the person, whether arising in contract, tort, or
otherwise, and whether accrued or not accrued, dies before the
expiration of the applicable limitations period, and the cause of
action survives, an action may be commenced within one year after the
date of death, and the limitations period that would have been
applicable does not apply.
(b) The limitations period provided in this section for
commencement of an action shall not be tolled or extended for any
reason except as provided in any of the following, where applicable:
(1) Part 4 (commencing with Section 9000) of Division 7 of the
Probate Code (creditor claims in administration of estates of
decedents).
(2) Part 8 (commencing with Section 19000) of Division 9 of the
Probate Code (payment of claims, debts, and expenses from revocable
trust of deceased settlor).
(3) Part 3 (commencing with Section 21300) of Division 11 of the
Probate Code (no contest clauses).
(c) This section applies to actions brought on liabilities of
persons dying on or after January 1, 1993.
SEC. 2. Section 527.6 of the Code of Civil Procedure is amended to
read:
527.6. (a) A person who has suffered harassment as defined in
subdivision (b) may seek a temporary restraining order and an
injunction prohibiting harassment as provided in this section.
(b) For the purposes of this section, "harassment" is unlawful
violence, a credible threat of violence, or a knowing and willful
course of conduct directed at a specific person that seriously
alarms, annoys, or harasses the person, and that serves no legitimate
purpose. The course of conduct must be such as would cause a
reasonable person to suffer substantial emotional distress, and must
actually cause substantial emotional distress to the plaintiff.
As used in this subdivision:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an individual,
making harassing telephone calls to an individual, or sending
harassing correspondence to an individual by any means including, but
not limited to, the use of public or private mails, interoffice
mail, fax, or computer e-mail. Constitutionally protected activity
is not included within the meaning of "course of conduct."
(c) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with Section 527, except to the extent this section provides a rule
that is inconsistent. A temporary restraining order may be issued
with or without notice upon an affidavit that, to the satisfaction of
the court, shows reasonable proof of harassment of the plaintiff by
the defendant, and that great or irreparable harm would result to the
plaintiff. In the discretion of the court, and on a showing of good
cause, a temporary restraining order issued under this section may
include other named family or household members who reside with the
plaintiff. A temporary restraining order issued under this section
shall remain in effect, at the court's discretion, for a period not
to exceed 15 days, or, if the court extends the time for hearing
under subdivision (d), not to exceed 22 days, unless otherwise
modified or terminated by the court.
(d) Within 15 days, or, if good cause appears to the court, 22
days, from the date the temporary restraining order is issued, a
hearing shall be held on the petition for the injunction. The
defendant may file a response that explains, excuses, justifies, or
denies the alleged harassment or may file a cross-complaint under
this section. At the hearing, the judge shall receive any testimony
that is relevant, and may make an independent inquiry. If the judge
finds by clear and convincing evidence that unlawful harassment
exists, an injunction shall issue prohibiting the harassment. An
injunction issued pursuant to this section shall have a duration of
not more than three years. At any time within the three months
before the expiration of the injunction, the plaintiff may apply for
a renewal of the injunction by filing a new petition for an
injunction under this section.
(e) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(f) In a proceeding under this section where there are allegations
or threats of domestic violence, a support person may accompany a
party in court and, where the party is not represented by an
attorney, may sit with the party at the table that is generally
reserved for the party and the party's attorney. The support person
is present to provide moral and emotional support for a person who
alleges he or she is a victim of domestic violence. The support
person is not present as a legal adviser and shall not give legal
advice. The support person shall assist the person who alleges he or
she is a victim of domestic violence in feeling more confident that
he or she will not be injured or threatened by the other party during
the proceedings where the person who alleges he or she is a victim
of domestic violence and the other party must be present in close
proximity. Nothing in this subdivision precludes the court from
exercising its discretion to remove the support person from the
courtroom if the court believes the support person is prompting,
swaying, or influencing the party assisted by the support person.
(g) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may for good cause, on motion of the plaintiff
or on its own motion, shorten the time for service on the defendant.
(h) The court shall order the plaintiff or the attorney for the
plaintiff to deliver a copy of each temporary restraining order or
injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported harassment.
An order issued under this section shall, on request of the
plaintiff, be served on the defendant, whether or not the defendant
has been taken into custody, by any law enforcement officer who is
present at the scene of reported harassment involving the parties to
the proceeding. The plaintiff shall provide the officer with an
endorsed copy of the order and a proof of service that the officer
shall complete and send to the issuing court.
Upon receiving information at the scene of an incident of
harassment that a protective order has been issued under this
section, or that a person who has been taken into custody is the
subject of an order, if the protected person cannot produce a
certified copy of the order, a law enforcement officer shall
immediately attempt to verify the existence of the order.
If the law enforcement officer determines that a protective order
has been issued, but not served, the officer shall immediately notify
the defendant of the terms of the order and shall at that time also
enforce the order. Verbal notice of the terms of the order shall
constitute service of the order and is sufficient notice for the
purposes of this section and for the purposes of Section 273.6 and
subdivision (g) of Section 12021 of the Penal Code.
(i) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(j) Any willful disobedience of any temporary restraining order or
injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code.
(k) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of the Civil
Code or by Division 10 (commencing with Section 6200) of the Family
Code. Nothing in this section shall preclude a plaintiff's right to
use other existing civil remedies.
(l) The Judicial Council shall promulgate forms and instructions
therefor, and rules for service of process, scheduling of hearings,
and any other matters required by this section. The petition and
response forms shall be simple and concise.
SEC. 3. Section 527.8 of the Code of Civil Procedure is amended to
read:
527.8. (a) Any employer, whose employee has suffered unlawful
violence or a credible threat of violence from any individual, that
can reasonably be construed to be carried out or to have been carried
out at the workplace, may seek a temporary restraining order and an
injunction on behalf of the employee prohibiting further unlawful
violence or threats of violence by that individual.
(b) For the purposes of this section:
(1) "Unlawful violence" is any assault or battery, or stalking as
prohibited in Section 646.9 of the Penal Code, but shall not include
lawful acts of self-defense or defense of others.
(2) "Credible threat of violence" is a knowing and willful
statement or course of conduct that would place a reasonable person
in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose.
(3) "Course of conduct" is a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose, including following or stalking an employee to
or from the place of work; entering the workplace; following an
employee during hours of employment; making telephone calls to an
employee; or sending correspondence to an employee by any means,
including, but not limited to, the use of the public or private
mails, interoffice mail, fax, or computer e-mail.
(c) Nothing in this section shall be construed to permit a court
to issue a temporary restraining order or injunction prohibiting
speech or other activities that are constitutionally protected, or
otherwise protected by Section 527.3 or any other provision of law.
(d) For purposes of this section, the terms "employer" and
"employee" mean persons defined in Section 350 of the Labor Code.
The term "employer" also includes a federal agency, the state, a
state agency, a city, county, or district, and a private, public, or
quasi-public corporation, or any public agency thereof or therein.
The term "employee" also includes the members of boards of directors
of private, public, and quasi-public corporations and elected and
appointed public officers. For purposes of this section only, the
term "employee" also includes a volunteer or independent contractor
who performs services for the employer at the employer's worksite.
(e) Upon filing a petition for an injunction under this section,
the plaintiff may obtain a temporary restraining order in accordance
with subdivision (a) of Section 527, if the plaintiff also files an
affidavit that, to the satisfaction of the court, shows reasonable
proof that an employee has suffered unlawful violence or a credible
threat of violence by the defendant, and that great or irreparable
harm would result to an employee. In the discretion of the court, and
on a showing of good cause, a temporary restraining order issued
under this section may include other named family or household
members who reside with the employee.
A temporary restraining order granted under this section shall
remain in effect, at the court's discretion, for a period not to
exceed 15 days, unless otherwise modified or terminated by the court.
(f) Within 15 days of the filing of the petition, a hearing shall
be held on the petition for the injunction. The defendant may file a
response that explains, excuses, justifies, or denies the alleged
unlawful violence or credible threats of violence or may file a
cross-complaint under this section. At the hearing, the judge shall
receive any testimony that is relevant and may make an independent
inquiry. Moreover, if the defendant is a current employee of the
entity requesting the injunction, the judge shall receive evidence
concerning the employer's decision to retain, terminate, or otherwise
discipline the defendant. If the judge finds by clear and
convincing evidence that the defendant engaged in unlawful violence
or made a credible threat of violence, an injunction shall issue
prohibiting further unlawful violence or threats of violence. An
injunction issued pursuant to this section shall have a duration of
not more than three years. At any time within the three months
before the expiration of the injunction, the plaintiff may apply for
a renewal of the injunction by filing a new petition for an
injunction under this section.
(g) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on his or her own
behalf.
(h) Upon filing of a petition for an injunction under this
section, the defendant shall be personally served with a copy of the
petition, temporary restraining order, if any, and notice of hearing
of the petition. Service shall be made at least five days before the
hearing. The court may, for good cause, on motion of the plaintiff
or on its own motion, shorten the time for service on the defendant.
(i) The court shall order the plaintiff or the attorney for the
plaintiff to deliver a copy of each temporary restraining order or
injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was
granted, to the law enforcement agencies within the court's
discretion as are requested by the plaintiff. Each appropriate law
enforcement agency shall make available information as to the
existence and current status of these orders to law enforcement
officers responding to the scene of reported unlawful violence or a
credible threat of violence.
(j) Any intentional disobedience of any temporary restraining
order or injunction granted under this section is punishable pursuant
to Section 273.6 of the Penal Code.
(k) Nothing in this section shall be construed as expanding,
diminishing, altering, or modifying the duty, if any, of an employer
to provide a safe workplace for employees and other persons.
(l) The Judicial Council shall develop forms, instructions, and
rules for scheduling of hearings and other procedures established
pursuant to this section. The forms for the petition and response
shall be simple and concise.
SEC. 4. Section 2020 of the Family Code is amended to read:
2020. A responsive pleading, if any, shall be filed and a copy
served on the petitioner within 30 days of the date of the service on
the respondent of a copy of the petition and summons.
SEC. 5. Section 2101 of the Family Code is amended to read:
2101. Unless the provision or context otherwise requires, the
following definitions apply to this chapter:
(a) "Asset" includes, but is not limited to, any real or personal
property of any nature, whether tangible or intangible, and whether
currently existing or contingent.
(b) "Default judgment" does not include a stipulated judgment or
any judgment pursuant to a marital settlement agreement.
(c) "Earnings and accumulations" includes income from whatever
source derived, as provided in Section 4058.
(d) "Expenses" includes, but is not limited to, all personal
living expenses, but does not include business related expenses.
(e) "Income and expense declaration" includes the Income and
Expense Declaration forms approved for use by the Judicial Council,
and any other financial statement that is approved for use by the
Judicial Council in lieu of the Income and Expense Declaration, if
the financial statement form satisfies all other applicable criteria.
(f) "Liability" includes, but is not limited to, any debt or
obligation, whether currently existing or contingent.
SEC. 6. Section 2103 of the Family Code is amended to read:
2103. In order to provide full and accurate disclosure of all
assets and liabilities in which one or both parties may have an
interest, each party to a proceeding for dissolution of the marriage
or legal separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section 2104 and a final
declaration of disclosure under Section 2105, unless service of the
final declaration of disclosure is waived pursuant to Section 2105 or
2110, and shall file proof of service of each with the court.
SEC. 7. Section 2104 of the Family Code is amended to read:
2104. (a) After or concurrently with service of the petition for
dissolution or nullity of marriage or legal separation of the
parties, each party shall serve on the other party a preliminary
declaration of disclosure, executed under penalty of perjury on a
form prescribed by the Judicial Council. The commission of perjury
on the preliminary declaration of disclosure may be grounds for
setting aside the judgment, or any part or parts thereof, pursuant to
Chapter 10 (commencing with Section 2120), in addition to any and
all other remedies, civil or criminal, that otherwise are available
under law for the commission of perjury.
(b) The preliminary declaration of disclosure shall not be filed
with the court, except on court order; however, the parties shall
file proof of service of the preliminary declaration of disclosure
with the court.
(c) The preliminary declaration of disclosure shall set forth with
sufficient particularity, that a person of reasonable and ordinary
intelligence can ascertain, all of the following:
(1) The identity of all assets in which the declarant has or may
have an interest and all liabilities for which the declarant is or
may be liable, regardless of the characterization of the asset or
liability as community, quasi-community, or separate.
(2) The declarant's percentage of ownership in each asset and
percentage of obligation for each liability where property is not
solely owned by one or both of the parties. The preliminary
declaration may also set forth the declarant's characterization of
each asset or liability.
(d) A declarant may amend his or her preliminary declaration of
disclosure without leave of the court. Proof of service of any
amendment shall be filed with the court.
(e) Along with the preliminary declaration of disclosure, each
party shall provide the other party with a completed income and
expense declaration unless an income and expense declaration has
already been provided and is current and valid.
SEC. 8. Section 2105 of the Family Code is amended to read:
2105. (a) Except by court order for good cause or as provided in
subdivision (c), before or at the time the parties enter into an
agreement for the resolution of property or support issues other than
pendente lite support, or, if the case goes to trial, no later than
45 days before the first assigned trial date, each party, or the
attorney for the party in this matter, shall serve on the other party
a final declaration of disclosure and a current income and expense
declaration, executed under penalty of perjury on a form prescribed
by the Judicial Council. The commission of perjury on the final
declaration of disclosure may be grounds for setting aside the
judgment, or any part or parts thereof, pursuant to Chapter 10
(commencing with Section 2120), in addition to any and all other
remedies, civil or criminal, that otherwise are available under law
for the commission of perjury.
(b) The final declaration of disclosure shall include all of the
following information:
(1) All material facts and information regarding the
characterization of all assets and liabilities.
(2) All material facts and information regarding the valuation of
all assets that are contended to be community property or in which it
is contended the community has an interest.
(3) All material facts and information regarding the amounts of
all obligations that are contended to be community obligations or for
which it is contended the community has liability.
(4) All material facts and information regarding the earnings,
accumulations, and expenses of each party that have been set forth in
the income and expense declaration.
(c) The parties may stipulate to a mutual waiver of the
requirements of subdivision (a) concerning the final declaration of
disclosure by execution of a waiver in a marital settlement agreement
or by stipulated judgment or a stipulation entered into in open
court. The waiver shall include all of the following
representations:
(1) Both parties have complied with Section 2104 and the
preliminary declarations of disclosure have been completed and
exchanged.
(2) Both parties have completed and exchanged a current income and
expense declaration.
(3) The waiver is knowingly, intelligently, and voluntarily
entered into by each of the parties.
(4) Each party understands that by signing the waiver, he or she
may be affecting his or her ability to have the judgment set aside as
provided by law.
(d) Whether execution of a mutual waiver of the final declaration
of disclosure requirements pursuant to subdivision (c) will affect
the rights of either party to have the judgment set aside or will
affect the fiduciary obligations of each to the other shall be
decided by a court based on the law and the facts of each particular
case. The authority to execute a mutual waiver provided by this
section is not intended, in and of itself, to affect the law
regarding the fiduciary obligations owed by the parties, the parties'
rights with respect to setting aside a judgment, or any other rights
or responsibilities of the parties as provided by law.
(e) In making an order setting aside a judgment for failure to
comply with this section, the court may limit the set aside to those
portions of the judgment materially affected by the nondisclosure.
(f) As to any judgment entered prior to January 1, 1996, the
rights of any party to have any or all of the judgment set aside for
failure to serve and file final declarations of disclosure, and the
validity of any alleged waiver of the disclosure requirement, shall
be subject to this section.
SEC. 9. Section 2106 of the Family Code is amended to read:
2106. Except as provided in subdivision (c) of Section 2105 or in
Section 2110, absent good cause, no judgment shall be entered with
respect to the parties' property rights without each party, or the
attorney for that party in this matter, having executed and served a
copy of the final declaration of disclosure and current income and
expense declaration. Each party shall execute and file with the
court a declaration signed under penalty of perjury stating that
service of the final declaration of disclosure and current income and
expense declaration was made on the other party or that service of
the final declaration of disclosure has been waived pursuant to
subdivision (c) of Section 2105 or in Section 2110.
SEC. 10. Section 2110 of the Family Code is amended to read:
2110. In the case of a default judgment, the petitioner may waive
the final declaration of disclosure requirements provided in this
chapter, and shall not be required to serve a final declaration of
disclosure on the respondent nor receive a final declaration of
disclosure from the respondent. However, a preliminary declaration
of disclosure by the petitioner is required.
SEC. 11. Section 2330 of the Family Code is amended to read:
2330. (a) A proceeding for dissolution of marriage or for legal
separation of the parties is commenced by filing a petition entitled
"In re the marriage of ____ and ____" which shall state whether it is
a petition for dissolution of the marriage or for legal separation
of the parties.
(b) In a proceeding for dissolution of marriage or for legal
separation of the parties, the petition shall set forth among other
matters, as nearly as can be ascertained, the following facts:
(1) The date of marriage.
(2) The date of separation.
(3) The number of years from marriage to separation.
(4) The number of children of the marriage, if any, and if none a
statement of that fact.
(5) The age and birth date of each minor child of the marriage.
SEC. 12. Section 2330.1 of the Family Code is amended to read:
2330.1. In any proceeding for dissolution of marriage, for legal
separation of the parties, or for the support of children, the
petition or complaint may list children born before the marriage to
the same parties and, pursuant to the terms of the Uniform Parentage
Act, a determination of paternity may be made in the action. In
addition, a supplemental complaint may be filed, in any of those
proceedings, pursuant to Section 464 of the Code of Civil Procedure,
seeking a judgment or order of paternity or support for a child of
the mother and father of the child whose paternity and support are
already in issue before the court. A supplemental complaint for
paternity or support of children may be filed without leave of court
either before or after final judgment in the underlying action.
Service of the supplemental summons and complaint shall be made in
the manner provided for the initial service of a summons by this
code.
SEC. 13. Section 2336 of the Family Code is amended to read:
2336. (a) No judgment of dissolution or of legal separation of
the parties may be granted upon the default of one of the parties or
upon a statement or finding of fact made by a referee; but the court
shall, in addition to the statement or finding of the referee,
require proof of the grounds alleged, and the proof, if not taken
before the court, shall be by affidavit. In all cases where there
are minor children of the parties, each affidavit or offer of proof
shall include an estimate by the declarant or affiant of the monthly
gross income of each party. If the declarant or affiant
has no knowledge of the estimated
monthly income of a party, the declarant or affiant shall state why
he or she has no knowledge. In all cases where there is a community
estate, each affidavit or offer of proof shall include an estimate of
the value of the assets and the debts the declarant or affiant
proposes to be distributed to each party, unless the declarant or
affiant has filed, or concurrently files, a complete and accurate
property declaration with the court.
(b) If the proof is by affidavit, the personal appearance of the
affiant is required only when it appears to the court that any of the
following circumstances exist:
(1) Reconciliation of the parties is reasonably possible.
(2) A proposed child custody order is not in the best interest of
the child.
(3) A proposed child support order is less than a noncustodial
parent is capable of paying.
(4) A personal appearance of a party or interested person would be
in the best interests of justice.
(c) An affidavit submitted pursuant to this section shall contain
a stipulation by the affiant that the affiant understands that proof
will be by affidavit and that the affiant will not appear before the
court unless so ordered by the court.
SEC. 14. Section 2337 of the Family Code is amended to read:
2337. (a) In a proceeding for dissolution of marriage, the court,
upon noticed motion, may sever and grant an early and separate trial
on the issue of the dissolution of the status of the marriage apart
from other issues.
(b) A preliminary declaration of disclosure with a completed
schedule of assets and debts shall be served on the nonmoving party
with the noticed motion unless it has been served previously, or
unless the parties stipulate in writing to defer service of the
preliminary declaration of disclosure until a later time.
(c) The court may impose upon a party any of the following
conditions on granting a severance of the issue of the dissolution of
the status of the marriage, and in case of that party's death, an
order of any of the following conditions continues to be binding upon
that party's estate:
(1) The party shall indemnify and hold the other party harmless
from any taxes, reassessments, interest, and penalties payable by the
other party if the dissolution of the marriage before the division
of the parties' community estate results in a taxable event to either
of the parties by reason of the ultimate division of their community
estate, which taxes would not have been payable if the parties were
still married at the time the division was made.
(2) Until judgment has been entered on all remaining issues and
has become final, the party shall maintain all existing health and
medical insurance coverage for the other party and the minor children
as named dependents, so long as the party is legally able to do so.
At the time the party is no longer legally eligible to maintain the
other party as a named dependent under the existing health and
medical policies, the party or the party's estate shall, at the party'
s sole expense, purchase and maintain health and medical insurance
coverage that is comparable to the existing health and medical
insurance coverage. If comparable insurance coverage is not
obtained, the party or the party's estate is responsible for the
health and medical expenses incurred by the other party that would
have been covered by the insurance coverage, and shall indemnify and
hold the other party harmless from any adverse consequences resulting
from the lack of insurance.
(3) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other party
harmless from any adverse consequences resulting to the other party
if the bifurcation results in a termination of the other party's
right to a probate homestead in the residence in which the other
party resides at the time the severance is granted.
(4) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other party
harmless from any adverse consequences resulting to the other party
if the bifurcation results in the loss of the rights of the other
party to a probate family allowance as the surviving spouse of the
party.
(5) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other party
harmless from any adverse consequences resulting to the other party
if the bifurcation results in the loss of the other party's rights to
pension benefits, elections, or survivors' benefits under the party'
s pension or retirement plan to the extent that the other party would
have been entitled to those benefits or elections as the surviving
spouse of the party.
(6) Prior to entry of judgment terminating status, both of the
following shall occur:
(A) The party's retirement or pension plan shall be joined as a
party to the proceeding for dissolution.
(B) If applicable, an order pursuant to Section 2610 shall be
entered with reference to the defined benefit or similar plan pending
the ultimate resolution of the distribution of benefits under the
employee benefit plan.
(7) The party shall indemnify and hold the other party harmless
from any adverse consequences if the bifurcation results in the loss
of rights to social security benefits or elections to the extent the
other party would have been entitled to those benefits or elections
as the surviving spouse of the party.
(8) Any other condition the court determines is just and
equitable.
(d) A judgment granting a dissolution of the status of the
marriage shall expressly reserve jurisdiction for later determination
of all other pending issues.
(e) If the party dies after the entry of judgment granting a
dissolution of marriage, any obligation imposed by this section shall
be enforceable against any asset, including the proceeds thereof,
against which these obligations would have been enforceable prior to
the person's death.
SEC. 15. Section 4055 of the Family Code is amended to read:
4055. (a) The statewide uniform guideline for determining child
support orders is as follows: CS = K (HN - (H%) (TN)).
(b) (1) The components of the formula are as follows:
(A) CS = child support amount.
(B) K = amount of both parents' income to be allocated for child
support as set forth in paragraph (3).
(C) HN = high earner's net monthly disposable income.
(D) H% = approximate percentage of time that the high earner has
or will have primary physical responsibility for the children
compared to the other parent. In cases in which parents have
different time-sharing arrangements for different children, H% equals
the average of the approximate percentages of time the high earner
parent spends with each child.
(E) TN = total net monthly disposable income of both parties.
(2) To compute net disposable income, see Section 4059.
(3) K (amount of both parents' income allocated for child support)
equals one plus H% (if H% is less than or equal to 50 percent) or
two minus H% (if H% is greater than 50 percent) times the following
fraction:
Total Net Disposable
Income Per Month K
$0-800 0.20 + TN/16,000
$801-6,666 0.25
$6,667-10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN
For example, if H% equals 20 percent and the total monthly net
disposable income of the parents is $1,000, K = (1 + 0.20) X 0.25, or
0.30. If H% equals 80 percent and the total monthly net disposable
income of the parents is $1,000, K = (2 - 0.80) X 0.25, or 0.30.
(4) For more than one child, multiply CS by:
2 children 1.6
3 children 2
4 children 2.3
5 children 2.5
6 children 2.625
7 children 2.75
8 children 2.813
9 children 2.844
10 children 2.86
(5) If the amount calculated under the formula results in a
positive number, the higher earner shall pay that amount to the lower
earner. If the amount calculated under the formula results in a
negative number, the lower earner shall pay the absolute value of
that amount to the higher earner.
(6) In any default proceeding where proof is by affidavit pursuant
to Section 2336, or in any proceeding for child support in which a
party fails to appear after being duly noticed, H% shall be set at
zero in the formula if the noncustodial parent is the higher earner
or at 100 if the custodial parent is the higher earner, where there
is no evidence presented demonstrating the percentage of time that
the noncustodial parent has primary physical responsibility for the
children. H% shall not be set as described above if the moving party
in a default proceeding is the noncustodial parent or if the party
who fails to appear after being duly noticed is the custodial parent.
A statement by the party who is not in default as to the percentage
of time that the noncustodial parent has primary physical
responsibility for the children shall be deemed sufficient evidence.
(7) In all cases in which the net disposable income per month of
the obligor is less than one thousand dollars ($1,000), the court
shall rule on whether a low-income adjustment shall be made. The
ruling shall be based on the facts presented to the court, the
principles provided in Section 4053, and the impact of the
contemplated adjustment on the respective net incomes of the obligor
and the obligee. Where the court has ruled that a low-income
adjustment shall be made, the child support amount otherwise
determined under this section shall be reduced by an amount that is
no greater than the amount calculated by multiplying the child
support amount otherwise determined under this section by a fraction,
the numerator of which is 1,000 minus the obligor's net disposable
income per month, and the denominator of which is 1,000. If a
low-income adjustment is allowed, the court shall state the reasons
supporting the adjustment in writing or on the record and shall
document the amount of the adjustment and the underlying facts and
circumstances.
(8) Unless the court orders otherwise, the order for child support
shall allocate the support amount so that the amount of support for
the youngest child is the amount of support for one child, and the
amount for the next youngest child is the difference between that
amount and the amount for two children, with similar allocations for
additional children. However, this paragraph does not apply to cases
in which there are different time-sharing arrangements for different
children or where the court determines that the allocation would be
inappropriate in the particular case.
(c) If a court uses a computer to calculate the child support
order, the computer program shall not automatically default
affirmatively or negatively on whether a low-income adjustment is to
be applied. If the low-income adjustment is applied, the computer
program shall not provide the amount of the low-income adjustment.
Instead, the computer program shall ask the user whether or not to
apply the low-income adjustment, and if answered affirmatively, the
computer program shall provide the range of the adjustment permitted
by paragraph (7) of subdivision (b).
SEC. 16. Section 6203 of the Family Code is amended to read:
6203. For purposes of this act, "abuse" means any of the
following:
(a) Intentionally or recklessly to cause or attempt to cause
bodily injury.
(b) Sexual assault.
(c) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another.
(d) To engage in any behavior that has been or could be enjoined
pursuant to Section 6320.
SEC. 17. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, and including any of the foregoing orders issued in connection
with an order for modification of a custody or visitation order
issued pursuant to a dissolution, legal separation, nullity, or
paternity proceeding the Department of Justice shall be immediately
notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.1. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data. All data with respect
to criminal court protective orders issued under subdivision (g) of
Section 136.2 of the Penal Code shall be transmitted by the court or
its designee within one business day to law enforcement personnel by
either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into CLETS.
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, and including any of the foregoing orders issued in connection
with an order for modification of a custody or visitation order
issued pursuant to a dissolution, legal separation, nullity, or
paternity proceeding the Department of Justice shall be immediately
notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.2. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, tribe, or territory, and including any of the foregoing orders
issued in connection with an order for modification of a custody or
visitation order issued pursuant to a dissolution, legal separation,
nullity, or paternity proceeding the Department of Justice shall be
immediately notified of the contents of the order and the following
information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if
that person is a law
enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge. The informational packet shall also
contain a statement that the protective order is enforceable in any
state, territory, or reservation, and general information about
agencies in other jurisdictions that may be contacted regarding
enforcement of an order issued by a court of this state.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.3. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, and including any of the foregoing orders issued in connection
with an order for modification of a custody or visitation order
issued pursuant to a dissolution, legal separation, nullity, or
paternity proceeding the Department of Justice shall be immediately
notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership
or possession of firearms.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.4. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data. All data with respect
to criminal court protective orders issued under subdivision (g) of
Section 136.2 of the Penal Code shall be transmitted by the court or
its designee within one business day to law enforcement personnel by
either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into CLETS.
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, tribe, or territory, and including any of the foregoing orders
issued in connection with an order for modification of a custody or
visitation order issued pursuant to a dissolution, legal separation,
nullity, or paternity proceeding the Department of Justice shall be
immediately notified of the contents of the order and the following
information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge. The informational packet shall also
contain a statement that the protective order is enforceable in any
state, territory, or reservation, and general information about
agencies in other jurisdictions that may be contacted regarding
enforcement of an order issued by a court of this state.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.5. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, tribe, or territory, and including any of the foregoing orders
issued in connection with an order for modification of a custody or
visitation order issued pursuant to a dissolution, legal separation,
nullity, or paternity proceeding the Department of Justice shall be
immediately notified of the contents of the order and the following
information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership
or possession of firearms.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge. The informational packet shall also
contain a statement that the protective order is enforceable in any
state, territory, or reservation, and general information about
agencies in other jurisdictions that may be contacted regarding
enforcement of an order issued by a court of this state.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.6. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data. All data with respect
to criminal court protective orders issued under subdivision (g) of
Section 136.2 of the Penal Code shall be transmitted by the court or
its designee within one business day to law enforcement personnel by
either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into CLETS.
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(b) Upon the issuance of a protective order to which this division
applies pursuant to Section 6221, or the issuance of a temporary
restraining order or injunction relating to harassment or domestic
violence pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or the issuance of a criminal court protective order under
subdivision (g) of Section 136.2 of the Penal Code, or the issuance
of a juvenile court restraining order related to domestic violence
pursuant to Section 213.5, 304, or 362.4 of the Welfare and
Institutions Code, or upon registration with the court clerk of a
domestic violence protective order issued by the court of another
state, and including any of the foregoing orders issued in connection
with an order for modification of a custody or visitation order
issued pursuant to a dissolution, legal separation, nullity, or
paternity proceeding the Department of Justice shall be immediately
notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership
or possession of firearms.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 17.7. Section 6380 of the Family Code is amended to read:
6380. (a) Each county, with the approval of the Department of
Justice, shall, by July 1, 1996, develop a procedure, using existing
systems, for the electronic transmission of data, as described in
subdivision (b), to the Department of Justice. The data shall be
electronically transmitted through the California Law Enforcement
Telecommunications System (CLETS) of the Department of Justice by law
enforcement personnel, or with the approval of the Department of
Justice, court personnel, or another appropriate agency capable of
maintaining and preserving the integrity of both the CLETS and the
Domestic Violence Protective Order Registry, as described in
subdivision (e). Data entry is required to be entered only once
under the requirements of this section, unless the order is served at
a later time. A portion of all fees payable to the Department of
Justice under subdivision (a) of Section 1203.097 of the Penal Code
for the entry of the information required under this section, based
upon the proportion of the costs incurred by the local agency and
those incurred by the Department of Justice, shall be transferred to
the local agency actually providing the data. All data with respect
to criminal court protective orders issued under subdivision (g) of
Section 136.2 of the Penal Code shall be transmitted by the court or
its designee within one business day to law enforcement personnel by
either one of the following methods:
(1) Transmitting a physical copy of the order to a local law
enforcement agency authorized by the Department of Justice to enter
orders into CLETS.
(2) With the approval of the Department of Justice, entering the
order into CLETS directly.
(b) Upon
the issuance of a protective order to which this division applies
pursuant to Section 6221, or the issuance of a temporary restraining
order or injunction relating to harassment or domestic violence
pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, or
the issuance of a criminal court protective order under subdivision
(g) of Section 136.2 of the Penal Code, or the issuance of a juvenile
court restraining order related to domestic violence pursuant to
Section 213.5, 304, or 362.4 of the Welfare and Institutions Code, or
upon registration with the court clerk of a domestic violence
protective order issued by the court of another state, tribe, or
territory, and including any of the foregoing orders issued in
connection with an order for modification of a custody or visitation
order issued pursuant to a dissolution, legal separation, nullity, or
paternity proceeding the Department of Justice shall be immediately
notified of the contents of the order and the following information:
(1) The name, race, date of birth, and other personal descriptive
information of the respondent as required by a form prescribed by the
Department of Justice.
(2) The names of the protected persons.
(3) The date of issuance of the order.
(4) The duration or expiration date of the order.
(5) The terms and conditions of the protective order, including
stay-away, no-contact, residency exclusion, custody, and visitation
provisions of the order.
(6) The department or division number and the address of the
court.
(7) Whether or not the order was served upon the respondent.
(8) The terms and conditions of any restrictions on the ownership
or possession of firearms.
All available information shall be included; however, the
inability to provide all categories of information shall not delay
the entry of the information available.
(c) The information conveyed to the Department of Justice shall
also indicate whether the respondent was present in court to be
informed of the contents of the court order. The respondent's
presence in court shall provide proof of service of notice of the
terms of the protective order. The respondent's failure to appear
shall also be included in the information provided to the Department
of Justice.
(d) Immediately upon receipt of proof of service the clerk of the
court, and immediately after service any law enforcement officer who
served the protective order, shall notify the Department of Justice,
by electronic transmission, of the service of the protective order,
including the name of the person who served the order and, if that
person is a law enforcement officer, the law enforcement agency.
(e) The Department of Justice shall maintain a Domestic Violence
Protective Order Registry and shall make available to court clerks
and law enforcement personnel, through computer access, all
information regarding the protective and restraining orders and
injunctions described in subdivision (b), whether or not served upon
the respondent.
(f) If a court issues a modification, extension, or termination of
a protective order, the transmitting agency for the county shall
immediately notify the Department of Justice, by electronic
transmission, of the terms of the modification, extension, or
termination.
(g) The Judicial Council shall assist local courts charged with
the responsibility for issuing protective orders by developing
informational packets describing the general procedures for obtaining
a domestic violence restraining order and indicating the appropriate
Judicial Council forms, and shall include a design, that local
courts shall complete, that describes local court procedures and maps
to enable applicants to locate filing windows and appropriate
courts. The court clerk shall provide a fee waiver form to all
applicants for domestic violence protective orders. The court clerk
shall provide all Judicial Council forms required by this chapter to
applicants free of charge. The informational packet shall also
contain a statement that the protective order is enforceable in any
state, territory, or reservation, and general information about
agencies in other jurisdictions that may be contacted regarding
enforcement of an order issued by a court of this state.
(h) For the purposes of this part, "electronic transmission" shall
include computer access through the California Law Enforcement
Telecommunications System (CLETS).
SEC. 18. Section 7541 of the Family Code is amended to read:
7541. (a) Notwithstanding Section 7540, if the court finds that
the conclusions of all the experts, as disclosed by the evidence
based on blood tests performed pursuant to Chapter 2 (commencing with
Section 7550), are that the husband is not the father of the child,
the question of paternity of the husband shall be resolved
accordingly.
(b) The notice of motion for blood tests under this section may be
filed not later than two years from the child's date of birth by the
husband, or for the purposes of establishing paternity by the
presumed father or the child through or by the child's guardian ad
litem. As used in this subdivision, "presumed father" has the
meaning given in Sections 7611 and 7612.
(c) The notice of motion for blood tests under this section may be
filed by the mother of the child not later than two years from the
child's date of birth if the child's biological father has filed an
affidavit with the court acknowledging paternity of the child.
(d) The notice of motion for blood tests pursuant to this section
shall be supported by a declaration under oath submitted by the
moving party stating the factual basis for placing the issue of
paternity before the court.
(e) Subdivision (a) does not apply, and blood tests may not be
used to challenge paternity, in any of the following cases:
(1) A case that reached final judgment of paternity on or before
September 30, 1980.
(2) A case coming within Section 7613.
(3) A case in which the wife, with the consent of the husband,
conceived by means of a surgical procedure.
SEC. 19. Section 810 of the Probate Code is amended to read:
810. The Legislature finds and declares the following:
(a) For purposes of this part, there shall exist a rebuttable
presumption affecting the burden of proof that all persons have the
capacity to make decisions and to be responsible for their acts or
decisions.
(b) A person who has a mental or physical disorder may still be
capable of contracting, conveying, marrying, making medical
decisions, executing wills or trusts, and performing other actions.
(c) A judicial determination that a person is totally without
understanding, or is of unsound mind, or suffers from one or more
mental deficits so substantial that, under the circumstances, the
person should be deemed to lack the legal capacity to perform a
specific act, should be based on evidence of a deficit in one or more
of the person's mental functions rather than on a diagnosis of a
person's mental or physical disorder.
SEC. 20. Section 811 of the Probate Code is amended to read:
811. (a) A determination that a person is of unsound mind or
lacks the capacity to make a decision or do a certain act, including,
but not limited to, the incapacity to contract, to make a
conveyance, to marry, to make medical decisions, to execute wills, or
to execute trusts, shall be supported by evidence of a deficit in at
least one of the following mental functions, subject to subdivision
(b), and evidence of a correlation between the deficit or deficits
and the decision or acts in question:
(1) Alertness and attention, including, but not limited to, the
following:
(A) Level of arousal or consciousness.
(B) Orientation to time, place, person, and situation.
(C) Ability to attend and concentrate.
(2) Information processing, including, but not limited to, the
following:
(A) Short- and long-term memory, including immediate recall.
(B) Ability to understand or communicate with others, either
verbally or otherwise.
(C) Recognition of familiar objects and familiar persons.
(D) Ability to understand and appreciate quantities.
(E) Ability to reason using abstract concepts.
(F) Ability to plan, organize, and carry out actions in one's own
rational self-interest.
(G) Ability to reason logically.
(3) Thought processes. Deficits in these functions may be
demonstrated by the presence of the following:
(A) Severely disorganized thinking.
(B) Hallucinations.
(C) Delusions.
(D) Uncontrollable, repetitive, or intrusive thoughts.
(4) Ability to modulate mood and affect. Deficits in this ability
may be demonstrated by the presence of a pervasive and persistent or
recurrent state of euphoria, anger, anxiety, fear, panic,
depression, hopelessness or despair, helplessness, apathy or
indifference, that is inappropriate in degree to the individual's
circumstances.
(b) A deficit in the mental functions listed above may be
considered only if the deficit, by itself or in combination with one
or more other mental function deficits, significantly impairs the
person's ability to understand and appreciate the consequences of his
or her actions with regard to the type of act or decision in
question.
(c) In determining whether a person suffers from a deficit in
mental function so substantial that the person lacks the capacity to
do a certain act, the court may take into consideration the
frequency, severity, and duration of periods of impairment.
(d) The mere diagnosis of a mental or physical disorder shall not
be sufficient in and of itself to support a determination that a
person is of unsound mind or lacks the capacity to do a certain act.
(e) This part applies only to the evidence that is presented to,
and the findings that are made by, a court determining the capacity
of a person to do a certain act or make a decision, including, but
not limited to, making medical decisions. Nothing in this part shall
affect the decisionmaking process set forth in Section 1418.8 of the
Health and Safety Code, nor increase or decrease the burdens of
documentation on, or potential liability of, health care providers
who, outside the judicial context, determine the capacity of patients
to make a medical decision.
SEC. 21. Section 1826 of the Probate Code is amended to read:
1826. Regardless of whether the proposed conservatee attends the
hearing, the court investigator shall do all of the following:
(a) Interview the proposed conservatee personally.
(b) Inform the proposed conservatee of the contents of the
citation, of the nature, purpose, and effect of the proceeding, and
of the right of the proposed conservatee to oppose the proceeding, to
attend the hearing, to have the matter of the establishment of the
conservatorship tried by jury, to be represented by legal counsel if
the proposed conservatee so chooses, and to have legal counsel
appointed by the court if unable to retain legal counsel.
(c) Determine whether it appears that the proposed conservatee is
unable to attend the hearing and, if able to attend, whether the
proposed conservatee is willing to attend the hearing.
(d) Review the allegations of the petition as to why the
appointment of the conservator is required and, in making his or her
determination, do the following:
(1) Refer to the supplemental information form submitted by the
petitioner and consider the facts set forth in the form that address
each of the categories specified in paragraphs (1) to (5), inclusive,
of subdivision (a) of Section 1821.
(2) Consider, to the extent practicable, whether he or she
believes the proposed conservatee suffers from any of the mental
function deficits listed in subdivision (a) of Section 811 that
significantly impairs the proposed conservatee's ability to
understand and appreciate the consequences of his or her actions in
connection with any of the functions described in subdivision (a) or
(b) of Section 1801 and identify the observations that support that
belief.
(e) Determine whether the proposed conservatee wishes to contest
the establishment of the conservatorship.
(f) Determine whether the proposed conservatee objects to the
proposed conservator or prefers another person to act as conservator.
(g) Determine whether the proposed conservatee wishes to be
represented by legal counsel and, if so, whether the proposed
conservatee has retained legal counsel and, if not, the name of an
attorney the proposed conservatee wishes to retain.
(h) Determine whether the proposed conservatee is capable of
completing an affidavit of voter registration.
(i) If the proposed conservatee has not retained legal counsel,
determine whether the proposed conservatee desires the court to
appoint legal counsel.
(j) Determine whether the appointment of legal counsel would be
helpful to the resolution of the matter or is necessary to protect
the interests of the proposed conservatee in any case where the
proposed conservatee does not plan to retain legal counsel and has
not requested the appointment of legal counsel by the court.
(k) Report to the court in writing, at least five days before the
hearing, concerning all of the foregoing, including the proposed
conservatee's express communications concerning both of the
following:
(1) Representation by legal counsel.
(2) Whether the proposed conservatee is not willing to attend the
hearing, does not wish to contest the establishment of the
conservatorship, and does not object to the proposed conservator or
prefer that another person act as conservator.
(l) Mail, at least five days before the hearing, a copy of the
report referred to in subdivision (k) to all of the following:
(1) The attorney, if any, for the petitioner.
(2) The attorney, if any, for the proposed conservatee.
(3) Any other persons as the court orders.
(m) The court investigator has discretion to release the report
required by this section to the public conservator, interested public
agencies, and the long-term care ombudsman.
(n) The report required by this section is confidential and shall
be made available only to parties, persons given notice of the
petition who have requested this report or who have appeared in the
proceedings, their attorneys, and the court. The court has
discretion at any other time to release the report, if it would serve
the interests of the conservatee. The county clerk shall provide
for the limitation of the report exclusively to persons entitled to
its receipt.
(o) This section does not apply to a proposed conservatee who has
personally executed the petition for conservatorship, or one who has
nominated his or her own conservator, if he or she attends the
hearing.
(p) If the court investigator has performed an investigation
within the preceding six months and furnished a report thereon to the
court, the court may order, upon good cause shown, that another
investigation is not necessary or that a more limited investigation
may be performed.
SEC. 22. Section 2620 of the Probate Code is amended to read:
2620. (a) At the expiration of one year from the time of
appointment and thereafter not less frequently than biennially,
unless otherwise ordered by the court, the guardian or conservator
shall present the account of the guardian or conservator to the court
for settlement and allowance in the manner provided in Chapter 4
(commencing with Section 1060) of Part 1 of Division 3.
(b) The final account of the guardian or conservator following the
death of the ward or conservatee shall include an account for the
period that ended on the date of death and a separate account for the
period subsequent to the date of death.
SEC. 23. Section 2640 of the Probate Code is amended to read:
2640. (a) At any time after the filing of the inventory and
appraisal, but not before the expiration of 90 days from the issuance
of letters or any other period of time as the court for good cause
orders, the guardian or conservator of the estate may petition the
court for an order fixing and allowing compensation to any one or
more of the following:
(1) The guardian or conservator of the estate for services
rendered to that time.
(2) The guardian or conservator of the person for services
rendered to that time.
(3) The attorney for services rendered to that time by the
attorney to the guardian or conservator of the person or estate or
both.
(b) Notice of the hearing shall be given for the period and in the
manner provided in Chapter 3 (commencing with Section 1460) of Part
1.
(c) Upon the hearing, the court shall make an order allowing (1)
any compensation requested in the petition the court determines is
just and reasonable to the guardian or conservator of the estate for
services rendered or to the guardian or conservator of the person for
services rendered, or to both, and (2) any compensation requested in
the petition the court determines is reasonable to the attorney for
services rendered to the guardian or conservator of the person or
estate or both. The compensation allowed to the guardian or
conservator of the person, the guardian or conservator of the estate,
and to the attorney may, in the discretion of the court, include
compensation for services rendered before the date of the order
appointing the guardian or conservator. The compensation allowed
shall thereupon be charged to the estate. Legal services for which
the attorney may be compensated include those services rendered by
any paralegal performing legal services under the direction and
supervision of an attorney. The petition or application for
compensation shall set forth the hours spent and services performed
by the paralegal.
SEC. 24. Section 8250 of the Probate Code is amended to read:
8250. (a) When a will is contested under Section 8004, the
contestant shall file with the court an objection to probate of the
will. Thereafter, a summons shall be issued and served, with a copy
of the objection, on the persons required by Section 8110 to be
served with notice of hearing of a petition for administration of the
decedent's estate. The summons shall be issued and served as
provided in Chapter 4 (commencing with Section 413.10) of Title 5 of
Part 2 of the Code of Civil Procedure. The summons shall contain a
direction that the persons summoned file with the court a written
pleading in response to the contest within 30 days after service of
the summons.
(b) A person named as executor in the will is under no duty to
defend a contest until the person is appointed personal
representative.
SEC. 25. Section 8271 of the Probate Code is amended to read:
8271. (a) On the filing of the petition, a summons shall be
directed to the personal representative and to the heirs and devisees
of the decedent, so far as known to the petitioner. The summons
shall contain a direction that the persons summoned file with the
court a written pleading in response to the petition within 30 days
after service of the summons. Failure of a person timely to respond
to the summons precludes the person from further participation in the
revocation proceeding, but does not otherwise affect the person's
interest in the estate.
(b) The summons shall be issued and served with a copy of the
petition and proceedings had as in the case of a contest of the will.
(c) If a person fails timely to respond to the summons:
(1) The case is at issue notwithstanding the failure and the case
may proceed on the petition and other documents filed by the time of
the hearing, and no further pleadings by other persons are necessary.
(2) The person may not participate further in the contest, but the
person's interest in the estate is not otherwise affected.
(3) The person is bound by the decision in the proceeding.
SEC. 26. (a) Section 17.1 of this bill incorporates amendments to
Section 6380 of the Family Code proposed by both this bill and AB
1531. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 1999, (2) each bill
amends Section 6380 of the Family Code, (3) AB 2177 and SB 1682 are
not enacted or as enacted do not amend that section, and (4) this
bill is enacted after AB 1531, in which case Sections 17, 17.2, 17.3,
17.4, 17.5, 17.6, and 17.7 of this bill shall not become operative.
(b) Section 17.2 of this bill incorporates amendments to Section
6380 of the Family Code proposed by this bill and AB 2177. It shall
only become operative if (1) both bills are enacted and become
effective on or before January 1, 1999, (2) each bill amends Section
6380 of the Family Code, and (3) AB 1531 and SB 1682 are not enacted
or as enacted do not amend that section, and (4) this bill is enacted
after AB 2177, in which case Sections 17, 17.1, 17.3, 17.4, 17.5,
17.6, and 17.7 of this bill shall not become operative.
(c) Section 17.3 of this bill incorporates amendments to Section
6380 of the Family Code proposed by this bill and SB 1682. It shall
only become operative if (1) both bills are enacted and become
effective on or before January 1, 1999, (2) each bill amends Section
6380 of the Family Code, and (3) AB 1531 and AB 2177 are not enacted
or as enacted do not amend that section, and (4) this bill is enacted
after SB 1682, in which case Sections 17, 17.1, 17.2, 17.4, 17.5,
17.6, and 17.7 of this bill shall not become operative.
(d) Section 17.4 of this bill incorporates amendments to Section
6380 of the Family Code proposed by this bill and AB 1531 and AB
2177. It shall only become operative if (1) all three bills are
enacted and become effective on or before January 1, 1999, (2) all
three bills amend Section 6380 of the Family Code, and (3) SB 1682 is
not enacted or as enacted does not amend that section, and (4) this
bill is enacted after AB 1531 and AB 2177, in which case Sections 17,
17.1, 17.2, 17.3, 17.5, 17.6, and 17.7 of this bill shall not become
operative.
(e) Section 17.5 of this bill incorporates amendments to Section
6380 of the Family Code proposed by this bill and AB 2177 and SB
1682. It shall only become operative if (1) all three bills are
enacted and become effective on or before January 1, 1999, (2) all
three bills amend Section 6380 of the Family Code, and (3) AB 1531 is
not enacted or as enacted does not amend that section, and (4) this
bill is enacted after AB 2177 and SB 1682, in which case Sections 17,
17.1, 17.2, 17.3, 17.4, 17.6, and 17.7 of this bill shall not become
operative.
(f) Section 17.6 of this bill incorporates amendments to Section
6380 of the Family Code proposed by this bill, AB 1531, and SB 1682.
It shall only become operative if (1) all three bills are enacted
and become effective on or before January 1, 1999, (2) all three
bills amend Section 6380 of the Family Code, and (3) AB 2177 is not
enacted or as enacted does not amend that section, and (4) this bill
is enacted after AB 1531 and SB 1682, in which case Sections 17,
17.1, 17.2, 17.3, 17.4, 17.5, and 17.7 of this bill shall not become
operative.
(g) Section 17.7 of this bill incorporates amendments to Section
6380 of the Family Code proposed by this bill and AB 1531, AB 2177,
and SB 1682. It shall only become operative if (1) all four bills
are enacted and become effective on or before January 1, 1999, (2)
all four bills amend Section 6380 of the Family Code, and (3) this
bill is enacted after AB 1531, AB 2177, and SB 1682, in which case
Sections 17, 17.1, 17.2, 17.3, 17.4, 17.5, and 17.6 of this bill
shall not become operative.
SEC. 27. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.