BILL NUMBER: AB 402 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 24, 2006
AMENDED IN SENATE AUGUST 7, 2006
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 Sections 2013 , 3022.3, and 3022.4
and 3022.3 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, rather than an
adversarial judicial proceeding to resolve those disputes.
The bill would deem any statement, communication, or work product
arising from or made in the course of the process, except any written
agreement entered into by the parties, confidential and inadmissible
in any noncriminal proceeding, except by written agreement to the
contrary by the parties, 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 authorize the court to impose sanctions under
specified circumstances, including contempt. Because existing law
authorizes a court to impose sanctions in the form of a fine or
imprisonment, or both a fine and imprisonment, for the crime of
contempt, the bill would expand the scope of an existing crime,
thereby imposing a state-mandated local program.
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.
The bill would also request the Committees on the Judiciary of the
Senate and Assembly to study and make recommendations for a
comprehensive statute governing the practice of collaborative law, as
specified.
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.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes 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 any professionals
engaged by the partie s to assist them agree in
writing to use their best efforts and to make a good faith attempt to
resolve disputes related to the family law matters as
referenced in subdivision (a) on an agreed basis without resorting to
adversary judicial intervention. 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) 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 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.
(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 during the collaborative law process are deemed
admissible in court.
(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. If 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.
(h) Pursuant to paragraph (3) of subdivision (e), all written
agreements entered into by the parties 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.
(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 court 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.
(j) Except for good cause, a court that is notified at least 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 trial preparation orders.
(4) Dismiss the case.
(k) The parties shall notify the court if the collaborative law
process results in a settlement.
(l) The court shall refrain from requiring court appearances
inconsistent with the parties' agreement pursuant to paragraph (2) of
subdivision (i) unless it finds good cause for doing so. Nothing in
this section shall be construed to restrict the jurisdiction of the
court, including any local rules of court over the matter.
(m) The court may impose sanctions under any applicable law if any
party or any attorney has done any of the following:
(1) Used the collaborative law process in bad faith for the
purpose of unilateral delay.
(2) Engaged in any concealment, misrepresentation, or perpetuation
of the collaborative law process in any way that materially and
adversely affected the rights of the other party.
(3) Engaged in conduct that comes within the provisions of any law
providing for the imposition of sanctions.
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 any other action within the scope of its authority
regarding custody and visitation.
SEC. 5. SEC. 4. (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
Judicial 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.
SEC. 6. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because 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 XIII B of the
California Constitution.
SEC. 5. (a) It is the intent of the Legislature
that legislation be enacted during the 2007 -08 legislative session
to provide a procedural framework for the practice of collaborative
law, as described in Section 2 of this act. Towards that end, the
Committees on the Judiciary of the Senate and Assembly are requested
to convene a working group to study and make recommendations for a
comprehensive statute governing the practice of collaborative law.
(b) Members of the working group shall include the following:
(1) Family law attorneys, including members of the Executive
Committee of the Family Law Section of the State Bar.
(2) Representatives from the judicial, executive, and legislative
branches.
(3) Members of the public.
(c) The working group is requested to complete its deliberations
by January 1, 2007.