BILL NUMBER: AB 402 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 19, 2006
AMENDED IN SENATE APRIL 26, 2006
AMENDED IN SENATE APRIL 18, 2006
AMENDED IN ASSEMBLY MAY 2, 2005
INTRODUCED BY Assembly Member Dymally
FEBRUARY 15, 2005
An act to add Section 2013 to Sections
2013, 3022.3, and 3022.4 to, the Family Code, relating to
family law.
LEGISLATIVE COUNSEL'S DIGEST
AB 402, as amended, Dymally Family law court: marriage.
Existing law establishes procedures related to proceedings for
dissolution of marriage, nullity of marriage, and legal separation,
as specified.
This bill would enact the Collaborative Family Law Act, which
would allow the parties to those proceedings, by written agreement,
to utilize a collaborative law process, as specified, to
resolve those disputes, rather than through
an adversarial judicial proceeding to resolve those
disputes . The bill would deem any statement, communication, or
work product made or arising during
from or made in the course of the process,
except any written agreement entered into by the parties and
prepared by their collaborative law attorneys ,
confidential and inadmissible in any noncriminal proceeding, except
by written agreement to the contrary by the parties and
prepared by their collaborative law attorneys , and would
prohibit the court from intervening during that time. If the process
terminates without settlement, the bill would then require each party
to hire new counsel or represent themselves in any further
proceeding, and would require the court to set a case management
conference for any petition previously filed, if any.
The bill would also require a court to issue a statement
explaining the factual and legal basis for its custody decision upon
the trial of a question of fact in a proceeding to determine the
custody of a minor, upon the request of either party.
The bill would also require the Judicial Council to create an
information sheet for parties involved in child custody and
visitation matters, as specified, on or before January 1, 2008.
The bill would also describe the penalties authorized for a
violation of a custody order.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the
Collaborative Family Law Act.
SEC. 2. Section 2013 is added to the Family Code, to read:
2013. (a) If a written agreement is entered into by the parties
and their attorneys, the parties may utilize a collaborative law
process to resolve any matter governed by this code over which the
court is granted jurisdiction pursuant to Section 2000.
(b) "Collaborative law process" means the process in which the
parties and their attorneys agree in writing to use their best
efforts and to make a good faith attempt to resolve disputes related
to family law matters as referenced in subdivision (a) on an agreed
basis without resorting to adversary judicial intervention, except to
file the initial petition and response, stipulated orders or
judgments, and accompanying documents as may be required under this
code, or to have the court approve the settlement agreement, make the
legal pronouncements, and sign the orders required by law to
effectuate the agreement of the parties as the court determines
appropriate. The parties' attorneys may not serve as litigation
counsel, except to ask the court to approve the settlement agreement.
(c) If neither party files an initial petition for proceedings
pursuant to one of the issues listed in subdivision (a), at any time
during the collaborative law process the parties may agree in writing
to set jurisdiction over all issues to be heard by a court of
competent jurisdiction retroactive to any date as far back as the
date the parties entered into the collaborative law agreement.
(d) Sections 1115 to 1128
Section 703.5 of the Evidence Code regarding
competency of witnesses shall include and apply to collaborative law
attorneys and any other professional involved in the collaborative
law process.
(e) Sections 1118 to 1124 ,
inclusive, of the Evidence Code, regarding confidentiality
protections on information exchanged in mediation, shall also apply
to collaborative law proceedings . ,
including, but not limited to, the following:
(1) All statements, communications, and work product made
or arising from or made in the course of a
collaborative family law case are confidential and are inadmissible
in any arbitration, administrative adjudication, civil action, other
collaborative law process, or other noncriminal proceeding in
which testimony can be compelled , except by written agreement
to the contrary by the parties and prepared by their
collaborative law attorneys .
(2) Work product includes, but is not limited to, any written or
oral communication between the parties and their attorneys, and
written or oral communication, reports, or analysis of any third
party professional or expert used in the collaborative law process.
(3) Notwithstanding this subdivision and the confidential nature
of the collaborative law process, all written agreements entered into
by the parties and prepared by their collaborative law
attorneys during the collaborative law process are deemed
admissible in court.
(e)
(4) Anything said, any admission made, or any writing that is
inadmissible, protected from disclosure, and confidential under this
section before the collaborative law process terminates, shall remain
inadmissible, protected from disclosure, and confidential to the
same extent after the collaborative process terminates.
(f) For purposes of this section, a collaborative law process
terminates when one of the following conditions is satisfied:
(1) The parties execute a written settlement agreement that fully
resolves the dispute.
(2) Any party provides all other parties and their attorneys with
a writing stating that the collaborative law process is terminated or
words to that effect. In the event that an initial petition has been
filed, a written notice shall also be filed with the court and
served on all parties appearing in the action.
(3) Any party initiates an adversary judicial intervention.
(g) If the collaborative law process terminates without
settlement, each party shall seek new counsel or represent himself
or herself in order to proceed in litigation. Neither attorney in the
collaborative law process may act as litigation counsel for either
party.
(f)
(h) Pursuant to paragraph (3) of subdivision
(d) (e) , all written agreements entered into by
the parties and prepared by their collaborative law
attorneys during the collaborative law process are deemed
admissible in court, notwithstanding the termination of the process
or the confidential nature of the collaborative law process.
(g)
(i) The collaborative law agreement shall include, but
not be limited to, provisions for all of the following:
(1) The parties' full compliance with disclosure requirements
under Chapter 9 (commencing with Section 2100) and candid exchange of
all information between the parties and their attorneys as necessary
to make a proper evaluation of the case, including, but not limited
to, each party's preliminary declaration of disclosure, income and
expense declaration, and schedule of assets and debts, all under
penalty of perjury, pursuant to Section 2104.
(2) Suspending court intervention in the dispute while the parties
and their attorneys are using collaborative law procedures requiring
court appearances pursuant to local county rules.
(3) Provisions for jointly hiring mental health, financial, or
other professionals to serve as joint experts to assist the parties
in the investigation, evaluation, or resolution of issues, as well as
assisting the parties in making informed decisions.
(4) Withdrawal of all attorneys and all other professionals
involved in the collaborative law process if the process does
not result in settlement of the dispute.
(5) Expectation that the parties and attorneys shall use their
best efforts and good faith to resolve the dissolution of marriage
through the collaborative law process.
(h)
(j) A court that is notified 30 days before trial that
the parties are using the collaborative law process to attempt to
settle a dispute may not, until a party notifies the court that the
collaborative law process did not result in a settlement, do any of
the following:
(1) Set a hearing or trial in the case.
(2) Impose discovery deadlines.
(3) Require compliance with pretrial orders.
(4) Dismiss the case.
(i)
(k) The parties shall notify the court if the
collaborative law process results in a settlement.
(j)
(l) If the collaborative law process does not result in
a settlement on or before two years of the date that the petition
was filed, if any, the court may set the matter for a status or
case management conference upon request by the parties
.
SEC. 3. Section 3022.3 is added to the
Family Code , to read:
3022.3. Upon the trial of a question of fact in a proceeding to
determine the custody of a minor child, the court shall, upon the
request of either party, issue a statement of the decision explaining
the factual and legal basis for its decision pursuant to Section 632
of the Code of Civil Procedure.
SEC. 4. Section 3022.4 is added to the
Family Code , to read:
3022.4. (a) Any person who violates an order issued by the family
court relating to child custody may be in contempt of court and
subject to imprisonment, a fine, or both imprisonment and a fine
pursuant to the following provisions:
(1) Section 1218 of the Code of Civil Procedure.
(2) Section 278.5 of the Penal Code.
(b) In addition to the penalties described in subdivision (a), a
court may take other action within the scope of its authority
regarding custody and visitation.
SEC. 5. (a) The Judicial Council shall create an
information sheet for parties involved in child custody and
visitation matters that informs the parties that they have the right
to agree to a custody or visitation arrangement, that if they do not
agree, they will be required to participate in child custody
mediation, and that if mediation does not result in an agreement, the
court will be required to make a determination on the custody
issues. The sheet shall also provide information on how to obtain
assistance in resolving a custody case, including, but not limited
to, information on finding an attorney, including attorneys
practicing collaborative law as defined in Section 2013 of the Family
Code, information on accessing court based self-help services if
they are available, and information regarding other sources of
assistance in developing a custodial agreement. The council shall
adopt this sheet as a statewide form on or before January 1, 2008,
and take reasonable steps to ensure that it is distributed statewide
and made available to litigants in custody matters.
(b) Funding for creating the notice described in this section
shall be derived from existing resources.