BILL NUMBER: SB 326 CHAPTERED
BILL TEXT
CHAPTER 706
FILED WITH SECRETARY OF STATE SEPTEMBER 22, 1998
APPROVED BY GOVERNOR SEPTEMBER 21, 1998
PASSED THE SENATE AUGUST 31, 1998
PASSED THE ASSEMBLY AUGUST 31, 1998
AMENDED IN ASSEMBLY AUGUST 28, 1998
AMENDED IN ASSEMBLY AUGUST 25, 1998
AMENDED IN ASSEMBLY AUGUST 19, 1998
AMENDED IN SENATE APRIL 21, 1997
INTRODUCED BY Senator Leslie and Assembly Member Hertzberg
(Principal coauthor: Assembly Member Kuehl)
(Coauthors: Assembly Members Bustamante and Frusetta)
FEBRUARY 12, 1997
An act to amend Section 372 of, and to add Sections 374 and 374.5
to, the Code of Civil Procedure, relating to minors, and declaring
the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 326, Leslie. Minors: protective orders.
Existing law authorizes a person who has been a victim of
harassment, unlawful violence or threat of violence in the workplace,
or domestic violence to obtain a restraining or protective order
against the offending party and also authorizes the issuance of
specified protective orders during proceedings under the Uniform
Parentage Act. The rules of court provide that a minor, accompanied
by a guardian, may appear in court without counsel to obtain or
oppose any of these orders. Existing law also provides that a minor,
12 years of age or older, may appear in court without a guardian,
counsel, or guardian ad litem to obtain a protective order under the
Domestic Violence Prevention Act against a person with whom the minor
has or had a dating relationship; however, the court may, upon
motion or in its discretion, appoint a guardian ad litem to assist
the minor in obtaining the order.
This bill would (1) codify the above-described rule of court, with
respect to minors under the age of 12; (2) provide that any minor,
12 years of age or older, may appear in court without a guardian,
counsel, or guardian ad litem to obtain or oppose any of the
above-described restraining or protective orders; (3) require the
court to make a specified determination when appointing a particular
guardian ad litem to assist the minor; and (4) specify the proper
court to hear requests for those orders involving minors. The bill
would also require the Judicial Council to adopt forms by a specified
date to facilitate the appointment of a guardian ad litem in this
context.
The bill would declare that it is to take effect immediately as an
urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 372 of the Code of Civil Procedure is amended
to read:
372. (a) When a minor, an incompetent person, or a person for
whom a conservator has been appointed is a party, that person shall
appear either by a guardian or conservator of the estate or by a
guardian ad litem appointed by the court in which the action or
proceeding is pending, or by a judge thereof, in each case. A
guardian ad litem may be appointed in any case when it is deemed by
the court in which the action or proceeding is prosecuted, or by a
judge thereof, expedient to appoint a guardian ad litem to represent
the minor, incompetent person, or person for whom a conservator has
been appointed, notwithstanding that the person may have a guardian
or conservator of the estate and may have appeared by the guardian or
conservator of the estate. The guardian or conservator of the
estate or guardian ad litem so appearing for any minor, incompetent
person, or person for whom a conservator has been appointed shall
have power, with the approval of the court in which the action or
proceeding is pending, to compromise the same, to agree to the order
or judgment to be entered therein for or against the ward or
conservatee, and to satisfy any judgment or order in favor of the
ward or conservatee or release or discharge any claim of the ward or
conservatee pursuant to that compromise. Any money or other property
to be paid or delivered pursuant to the order or judgment for the
benefit of a minor, incompetent person, or person for whom a
conservator has been appointed shall be paid and delivered as
provided in Chapter 4 (commencing with Section 3600) of Part 8 of
Division 4 of the Probate Code.
Where reference is made in this section to "incompetent person,"
such reference shall be deemed to include "a person for whom a
conservator may be appointed."
Nothing in this section, or in any other provision of this code,
the Civil Code, the Family Code, or the Probate Code is intended by
the Legislature to prohibit a minor from exercising an intelligent
and knowing waiver of his or her constitutional rights in any
proceedings under the Juvenile Court Law, Chapter 2 (commencing with
Section 200) of Part 1 of Division 2 of the Welfare and Institutions
Code.
(b) (1) Notwithstanding subdivision (a), a minor 12 years of age
or older may appear in court without a guardian, counsel, or guardian
ad litem, for the purpose of requesting or opposing a request for
any of the following:
(A) An injunction or temporary restraining order or both to
prohibit harassment pursuant to Section 527.6.
(B) An injunction or temporary restraining order or both against
violence or a credible threat of violence in the workplace pursuant
to Section 527.8.
(C) A protective order pursuant to Division 10 (commencing with
Section 6200) of the Family Code.
(D) A protective order pursuant to Sections 7710 and 7720 of the
Family Code.
The court may, either upon motion or in its own discretion, and
after considering reasonable objections by the minor to the
appointment of specific individuals, appoint a guardian ad litem to
assist the minor in obtaining or opposing the order, provided that
the appointment of the guardian ad litem does not delay the issuance
or denial of the order being sought. In making the determination
concerning the appointment of a particular guardian ad litem, the
court shall consider whether the minor and the guardian have
divergent interests.
(2) For purposes of this subdivision only, upon the issuance of an
order pursuant to paragraph (1), if the minor initially appeared in
court seeking an order without a guardian or guardian ad litem, and
if the minor is residing with a parent or guardian, the court shall
send a copy of the order to at least one parent or guardian
designated by the minor, unless, in the discretion of the court,
notification of a parent or guardian would be contrary to the best
interest of the minor. The court is not required to send the order
to more than one parent or guardian.
(3) The Judicial Council shall adopt forms by July 1, 1999, to
facilitate the appointment of a guardian ad litem pursuant to this
subdivision.
SEC. 2. Section 374 is added to the Code of Civil Procedure, to
read:
374. (a) A minor under 12 years of age, accompanied by a duly
appointed and acting guardian ad litem, shall be permitted to appear
in court without counsel for the limited purpose of requesting or
opposing a request for (1) an injunction or temporary restraining
order or both to prohibit harassment pursuant to Section 527.6, (2)
an injunction or temporary restraining order or both against violence
or a credible threat of violence in the workplace pursuant to
Section 527.8, (3) a protective order pursuant to Division 10
(commencing with Section 6200) of the Family Code, or (4) a
protective order pursuant to Sections 7710 and 7720 of the Family
Code.
(b) In making the determination concerning appointment of a
particular guardian ad litem for purposes of this section, the court
shall consider whether the minor and the guardian have divergent
interests.
(c) The Judicial Council shall adopt forms by July 1, 1999, to
implement this section. The forms shall be designed to facilitate
the appointment of the guardian ad litem for purposes of this
section.
SEC. 3. Section 374.5 is added to the Code of Civil Procedure, to
read:
374.5. A proceeding initiated by or brought against a minor for
any of the injunctions or orders described in paragraph (1) of
subdivision (b) of Section 372 or subdivision (a) of Section 374
shall be heard in the court assigned to hear those matters; except
that, if the minor bringing the action or against whom the action is
brought has previously been adjudged a dependent child or a ward of
the juvenile court, the matter shall be heard in the juvenile court
having jurisdiction over the minor.
SEC. 4. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to ensure that the courts may promptly issue and enforce
protective and restraining orders with respect to minors who are
victims or perpetrators of violence, it is necessary that this act
take effect immediately.