BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 402 A
Assembly Member Dymally B
As Amended June 19, 2006
Hearing Date: June 27, 2006 4
Family Code 0
BCP:rm 2
SUBJECT
Collaborative Family Law Act
DESCRIPTION
This bill would enact the Collaborative Family Law Act,
which both: (1) codifies the ability for individuals to
participate in a collaborative process for dissolution or
nullity of marriage or legal separation; and (2) prevents a
court from setting hearings, trials, imposing discovery
deadlines, requiring compliance with pretrial orders or
dismissing the case if parties notify the court of their
participation in a collaborative process 30 days prior to
trial.
This bill would also enact provisions to allow parties to a
child custody proceeding to request a written statement of
the decision containing its factual and legal basis, define
penalties for violation of a custody order, and require the
Judicial Council to create an information sheet for parties
involved in child custody and visitation matters.
BACKGROUND
Traditionally, resolution of divorce disputes necessarily
involved litigation between the parties. The adversarial
nature of the litigation puts added strain on all parties,
including any children of the marriage. For many years, a
segment of the legal community has experimented with the
use of a more collaborative process to resolve these
differences. The goal of these processes is to reach an
(more)
AB 402 (Dymally)
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agreement between the parties without resorting to an
adversarial posture.
Although not currently governed by statute in California,
many practitioners offer their services for a collaborative
resolution to divorces. The basic idea is that all parties
agree to fully disclose all information; each party
generally is represented by an attorney. Parties then
proceed in a form of mediation to attempt to reach an
agreement on any disputed issues. Any involved attorney
must agree to withdraw should no agreement be reached
between the parties.
AB 402 would codify the parties' ability to enter into a
collaborative process for dissolution of marriage, nullity
of marriage or legal separation. This bill is modeled
after a Texas statute whose primary rationale in enactment
was "to allow parties to participate in a collaborative
process for seeking settlement without interference of the
court for up to two years." [Larry R. Spain, Collaborative
Law: A Critical Reflection on Whether a Collaborative
Orientation Can be Ethically Incorporated into the Practice
of Law, 56 Baylor L. Rev. 141, 151.] Like its Texas
counterpart, AB 402 would absolutely bar a court from
setting a divorce action for hearing or trial, imposing
discovery deadlines, requiring compliance with pretrial
orders or dismissing the case for a period of two years,
absent party action.
Language similar to this bill was introduced to the
Conference of Delegates of State Bar Associations, who
disapproved of the resolution in 2004 and approved of the
resolution in 2005 (Resolution 1-16-05; 06-01-04). Cited
problems by the Resolution Committee, both in 2004 and
2005, included failure to define consequences for failing
to act in good faith, unclear attorney liability and that
collaborative law did not require codification.
Recent amendments to AB 402 would add three provisions to
the Family Code that relate to child custody and the
ability of parties to request a written statement of facts
behind a decision, penalties for violation of custody
orders, and the Judicial Council's creation of an
information sheet.
AB 402 (Dymally)
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CHANGES TO EXISTING LAW
1. Existing law grants courts jurisdiction to inquire
into and render judgments and orders concerning the
status of marriage, custody of minor children, child and
spousal support, settlement of property rights, and
awards of attorney's fees and costs. [Fam. Code 2010.]
This bill would prevent a court from setting hearings,
imposing discovery deadlines, requiring compliance with
pretrial orders or dismissing the case when notified 30
days before trial that the parties are using a
collaborative law process.
This bill would define termination of the collaborative
law process as execution of a written settlement
agreement by the parties that solves the dispute,
notification by a party in writing that the collaborative
process is terminated, or by the filing of an adversary
judicial intervention.
2. Existing law allows parties to enter into a
collaborative process for property division by allowing
division of the community estate through written
agreement or oral stipulation in open court. [In re
Marriage of Cream (1993) 13 Cal.App.4th 81, 87; Fam. Code
2554.]
This bill would codify the ability for parties to enter
into an agreement to utilize a collaborative law process
to resolve any matter relating to dissolution or nullity
of marriage or legal separation, including custody,
support, property division and attorneys' fees. That
collaborative law agreement would include provisions
that:
suspend court intervention in the dispute;
jointly hire mental health, financial, or other
professionals;
full, candid disclosure of all information
including assets and liabilities
attorneys, and all other professionals involved,
must withdraw if the dispute is not settled through
the process; and
expectation that parties and attorneys proceed in
good faith.
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This bill would deem written agreements entered into by
the parties to be admissible in court. All other
statements, communications, and work product would be
inadmissible in arbitration, administrative adjudication,
other collaborative law processes, or other non-criminal
proceeding in which testimony can be compelled, except by
written agreement. This bill would additionally provide
that any statement, admission, or writing that is
inadmissible, protected from disclosure and confidential
under the bill during the collaborative law process
remains confidential and protected from disclosure after
termination of the process.
This bill would require the Judicial Council to create an
information sheet for parties involved in child custody
and visitation matters that informs them of their options
regarding mediation, court involvement, and resources.
3. Existing law allows a family law court to make an
order for the custody of a child, as necessary and
proper, during the pendency of a proceeding. [Fam. Code
3022.] Existing law requires a superior court, upon
the request of either party, to issue a statement
explaining the factual and legal basis for its decision.
[Code of Civ. Proc. 632.]
This bill would require a family law court, upon the
request of either party, to issue a statement explaining
the factual and legal basis for its decision.
This bill would state that violation of a child custody
order issued by a family law court may be contempt of
court and subject to imprisonment, a fine, or both
imprisonment and a fine. This bill would specifically
allow the court to take other actions within the scope of
its authority regarding custody and visitation, to
enforce that order.
COMMENT
1. Stated need for the bill
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According to the author, this bill would "recogniz[e] and
encourage[e] the process of collaborative law as a
legitimate means by which to resolve and complete
dissolution proceedings." The collaborative law process,
according to the author, seeks to "maximize settlement
options for the benefit of both parties and children and
to minimize or eliminate the negative economic, social
and emotional consequences of litigation."
Accordingly, the author contends that if AB 402 is
enacted:
more practitioners will look to the collaborative
model and the judiciary will put their weight of
approval behind the process. Having such a
statute in California will give this method of
resolving a dissolution legitimacy, which will
insure judges support it and encourage more
practitioners to use it.
Echoing those same comments, one supporter states that
"[t]hose of us who use [Collaborative Practice] to
resolve conflict had hoped that this statute would help
to normalize and legitimize [Collaborative Practice], in
much the same way as the adoption of mandatory mediation
of custody disputes helped make mediation a well-accepted
dispute resolution mode." The Family Law Section of the
State Bar, supporter, further states that "[i]t is
believed that if this statute was in place, more
practitioners will look to the collaborative model and
the judiciary will put their weight of approval behind
the process."
2. Concerns raised by the Resolution Committee of the
Conference of Delegates
As discussed above, similar proposals were introduced at
the annual Conference of Delegates of California Bar
Associations (Conference). According to their website,
the Conference contains "approximately 500 authorized
delegates from participating bar associations. The
delegates draft, analyze, lobby and vote on more than 100
resolutions." In 2004, that Conference disapproved of a
similar proposal to add guidelines and procedures for
collaborative law to the Family Code. While the
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Conference's Resolution Committee recommended disapproval
of the 2005 resolution, the Conference approved that
resolution.
In recommending disapproval of Resolution 1-16-05,
introduced at the 2005 Conference of Delegates, the
Conference's Resolution Committee stated:
. . . The down side [of collaborative law] is
that if the matter is not completely resolved
through collaboration, the parties are required
to start completely over, including retaining new
counsel or proceeding in propria persona. All
forensic work will be disregarded. Arguably, the
loss of all work product associated with the
collaborative law process and the requirement
that litigants must retain new counsel, or self
represent, if the process fails, provides
tremendous incentive to succeed. The concern is
that parties may feel coerced into an outcome
less favorable than that would have otherwise
[been] achieved due to financial and emotional
exhaustion.
Despite continued interest in this subject among
some family law practitioners, this resolution
does not overcome the significant adverse
consequences to litigants who fail in the
process. These consequences do not attach to
other forms of alternative dispute resolution.
Moreover, the proposed resolution creates an
exemption from court case management, without
clearly identifying a problem, if any, within the
system. It is well settled that parties cannot
validly waive the Court's subject matter
jurisdiction through contract. Since other forms
of alternative dispute resolution are not
codified, there is no reason to attempt to do so
with collaborative law. Further, to codify a
procedure would take away discretion from the
parties and their counsel on how the process
should proceed.
Additionally, the Alternative Dispute Resolution (ADR)
section of the Conference expressed support for "the
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adoption of alternative dispute resolution procedures, in
general, and not to the specific legal requirements set
forth in the proposed Act."
Similarly, the previous year, the Conference's Resolution
Committee's statement recommending disapproval of
Resolution 6-01-04 stated:
While collaborative law provides litigants a new
process which should not be discouraged, this
procedure need not be codified. First, it is
still in its infancy. There are no statistics to
provide an insight whether this process will be
successful and available in the future. Second,
at this point the collaborative law practitioners
should be free to develop and establish their
techniques
in this area without having to follow
pre-described rules and regulations. Third,
collaborative law raises concerns regarding the
ethical considerations of attorneys. Part of the
collaborative law concept is the waiver of the
attorney-client privilege and the change in the
attorney's traditional role as an advocate for
his client. Finally, other procedures which
remove actions from the court process have not
been codified in the past.
Accordingly, AB 402 would seek to codify this practice.
SHOULD A STATEWIDE TASKFORCE BE CONVENED TO STUDY
COLLABORATIVE LAW, AND GENERATE A PROPOSAL REFLECTING
CURRENT AND RECOMMENDED FUTURE PRACTICES?
3. Removing court jurisdiction over parties participating
in the collaborative law process
This bill, according to the author, is modeled after a
Texas collaborative law statute. One of the major goals
in enacting that statute was to allow parties in the
collaborative process to remain free from court
intervention for a period of time. While court
intervention, such as requiring that a trial be held
within a certain time period, could disrupt an otherwise
fruitful collaborative process, AB 402 would absolutely
bar a court from setting a hearing, among other things,
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even if absolutely necessary, when parties are
participating in the collaborative process. Parties,
either through an agreement, or unilateral choice could
end the collaborative process, and thus avail themselves
of the court.
In response to concerns about restrictions on courts,
supporters state that "[s]ince the point of
[Collaborative Practice] is, like mediation, for the
parties to find self-determined solutions outside of the
court process, [it is] unclear as to why there is any
concern at all. Parties mediate agreement outside of the
court process all the time and while there are some
differences between mediation and [Collaborative
Practice], the principle is the same."
As stated above, the 2005 Conference's Resolution
Committee questioned the removal of the court's ability
to manage cases "without clearly identifying a problem,
if any, within the system. It is well settled that
parties cannot validly waive the Court's subject matter
jurisdiction through contract." The effect of AB 402
would be to remove the Court's jurisdiction over the
collaborative process, provided the statutory conditions
are met. Thus, allowing parties to contract around a
court's jurisdiction would constitute a significant legal
change.
SHOULD NOT COURTS RETAIN THE JURISDICTION, AS NECESSARY,
OVER INDIVIDUALS IN THE COLLABORATIVE PROCESS?
4. Counter arguments raised by the Santa Clara County Bar
Association in response to the 2005 proposal to the
Conference of Delegates
Two county bar associations, Santa Clara and San Diego,
raised counter arguments to the collaborative law
proposal at the 2005 Conference of Delegates. That
proposal is substantially similar to AB 402.
A. Failure to identify what happens to the parties when
one party fails to use his/her best efforts or fails
to act in good faith
AB 402 would require, consistent with current
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collaborative practices, that "parties and their
attorneys agree in writing to use their best efforts
and to make a good faith attempt to resolve disputes."
In response, the Santa Clara County Bar Association
questions:
?what happens to the parties when one party
fails to use his/her best efforts or fails to
act in good faith, whether or not sanctions,
for example, are issued, and how the failure to
act in good faith or use best efforts would be
adjudicated, or not adjudicated[?]
AB 402 is silent on this issue. Therefore, it is
unclear whether the collaborative process would
immediately stop, whether any agreement would be
valid, or whether the parties would have to litigate
any allegations of bad faith.
Considering the emotional nature of these cases,
dissolution of marriage, nullity of marriage, and
legal separation, allegations of bad faith would not
seem to be uncommon. The Santa Clara County Bar
Association additionally points out that the similar
language submitted to the Conference, like AB 402,
"fails to address the method in which to prove a party
failed to use good faith efforts in light of the
collaborative process falling apart."
SHOULD AB 402 CONTAIN PENALTIES FOR BAD FAITH ACTIONS
OR THE FAILURE TO USE BEST EFFORTS AND ACT IN GOOD
FAITH?
B. Screening for the collaborative process
The Santa Clara County Bar Association, in their
counter argument, questioned "how parties will be
screened for the collaborative process." Akin to the
Resolution 1-16-05, AB 402 contains no language
setting out a screening procedure.
As several supporters of AB 402 have admitted, the
collaborative process is not for everyone. One
supporter states,
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. . . I would hope that you can consider that
private mediation also has a place in the
system. Collaborative law is a great option
when one or both parties are in great need of
legal [counsel] or when there are high conflict
cases. Private mediation is useful for some
less contentious divorce cases. Private
mediation encourages the use of lawyers to
advise on final decisions[;] however mediators
help the parties come to agreements on their
own terms and [are] much more cost effective.
In contrast to the provisions of AB 402, the above
described benefits of mediation are achieved without
tying the hands of the court.
A related concern articulated by the Santa Clara
County Bar Association concerns the lack of language
"identify[ing] what liability the collaborative
attorneys inherit for failure to evaluate the parties
effectively as proper for the collaborative process."
This returns to the above point, if attorneys are, in
fact, supposed to screen parties for the collaborative
process, what should be the penalty for failure to
properly screen prospective participants?
C. Argument that the collaborative law process does not
belong in the codes
Although the supporters of AB 402 would disagree, the
Santa Clara County Bar Association's response to the
2005 collaborative law resolution argues that:
?the practice of collaborative law should not
be codified because it is a private practice
that does not belong in the codes . . . [T]he
authors seem to seek recognition of the
collaborative process as though the practice,
at this time, does not have publicity. However,
I, and many others in the country, have learned
about the process through county bar meetings,
pamphlets that are handed out, speakers that
discuss the topic, through websites, and
through other channels of communication. A
resolution for the collaborative process
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specifically in regard to the family codes is
not appropriate.
Furthermore, the Conference Resolution Committee's
recommendation for disapproval of the 2005 resolution
stated that ". . . codif[ication of] a procedure would
take away discretion from the parties and their
counsel on how the process should proceed," Similar
concerns were relayed in the Conference's disapproval
of a related collaborative law resolution in 2004, "at
this point the collaborative law practitioners should
be free to develop and establish their techniques in
this area without having to follow pre-described rules
and regulations."
Proponents argue that codification is necessary to
ensure certain minimum standards, such as maintaining
confidentiality, ensuring that attorneys withdraw, and
keeping a court from interfering in the collaborative
process. The first two rationales for codification,
maintaining confidentiality, and ensuring the
withdrawal of attorneys, are already done through
contract by parties in the collaborative process. The
last rationale, preventing a court from interfering in
the collaborative process, is bad public policy. As
an alternative to removing a court's jurisdiction, the
author might consider allowing parties in a
collaborative proceeding to jointly petition the court
to obtain a 30- or 60-day delay of any court
proceeding, upon a showing of good cause.
Considering the importance of correct codification of
this process, the supporters should consider convening
a statewide taskforce to study the collaborative
process, and fully vet the proposed standards for
collaborative law.
SHOULD NOT, INSTEAD, A TASKFORCE BE CONVENED TO FULLY
VET THE PROPOSED COLLABORATIVE LAW STANDARDS?
5. Consumer Attorneys of California's concern about
potential unintended consequences as a result of broad
language concerning the inadmissibility of statements,
communications and work product
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AB 402 would apply Evidence Code provisions regarding the
confidentiality of information exchanged in mediation to
collaborative law proceedings. Additionally, other
language from the mediation section of the Evidence Code
was recently added to ensure the confidentiality of
admissions and writings after the termination of the
collaborative process. Recent amendments also prevent
collaborative law attorneys, and any other professionals
involved in the collaborative process from testifying in
a subsequent proceeding, subject to certain exceptions.
[Evid. Code 703.5, 1118 - 24, 1126.]
The Consumer Attorneys of California (CAOC), while
supporting AB 402's goal of creating a less adversarial
family court process, "oppose the [bill's] language . . .
that broadly makes information or statements privileged
and that makes the information inadmissible in any
arbitration or civil action." Specifically, CAOC points
out that "just because a discussion occurs during a
family law collaborative law proceeding on an unrelated
civil action that one of the litigants may be a party to
should not prevent otherwise admissible evidence from
being admissible in that civil action or arbitration."
Accordingly, CAOC suggests the addition of the following
language to proposed Family Code Section 2012 (e):
However, nothing in this section affects the
admissibility of statements, documents, writings,
communications or work product in an unrelated
civil action.
As raised in Comment 4(A), parties not using their best
efforts and acting in good faith face uncertain
consequences. Moreover, if all of the communications
occurring within the collaborative law process are
inadmissible, it would be extremely difficult to actually
prove failure to use best efforts or act in good faith.
SHOULD THE CONFIDENTIALITY PROVISIONS CONTAIN AN
EXCEPTION FOR CASES WHERE BEST EFFORTS AND GOOD FAITH OF
A PARTY IS LITIGATED?
6. Ethical problems associated with parties agreeing to
the disqualification of their attorneys
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While the goals of using a collaborative law process for
resolution are noble, those goals do not easily integrate
into our current adversarial system. For example,
attorneys are generally required to act as a "zealous
advocate" for their client's interest. The traditional
adversarial process places two zealous advocates against
each other, leaving a neutral fact finder or arbiter to
find the middle ground. The collaborative law process,
by its very nature, requires attorneys to temper their
zealousness in favor of a more neutral position.
Accordingly, while "the basic [collaborative law] model
can be consistent with norms of zealous advocacy . . . ,
some variations of the . . . model do not comply with
those professional norms because some of the models
define lawyers' roles as somewhat neutral and they are
structured in ways that inhibit lawyers from giving
candid advice." [John Lande, Possibilities for
Collaborative Law: Ethics and Practice of Lawyer
Disqualification and Process Control in a New Model of
Lawyering (2003) 64 Ohio St. L.J. 1315, 1336-1338; see
also 56 Baylor L. Rev. 141, 167.]
A potential ethical problem may be raised by the
attorneys' obligation to withdraw should the
collaborative process not result in agreement. As stated
by one commentator:
Many clients-especially in divorce cases-are in a
weak position in dealing with their lawyers, who
generally have much greater technical expertise,
social status, access to the legal system, and
emotional detachment. Ethical rules generally
restrict lawyers' authority to withdraw because
lawyers' threats to withdraw can coerce or
manipulate clients, especially given clients'
vulnerability.
[64 Ohio St. L.J. at 1344-45.]
AB 402 would prevent either party's attorney in the
collaborative law process from acting as litigation
counsel for either party. Supporters state that this is
one of the important features of AB 402 by "ensur[ing]
compliance by attorneys with mandatory disqualification
by making it statutory . . ." California's Rules of
Professional Conduct do not address an attorney's ethical
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duty in these cases. Rule 3-700, which covers an
attorney's ethical obligations upon withdrawal, states
that "[a] member shall not withdraw from employment until
the member has taken reasonable steps to avoid reasonably
foreseeable prejudice to the rights of the client . . ."
AB 402 does not specifically allow any time for that
attorney to take any necessary reasonable steps.
Moreover, one party could unilaterally force the
withdrawal of the other party's attorney, which would be
a significant shift in control over that attorney. The
situation would arise as follows: A husband and wife
enter into a collaborative process to resolve their
divorce. A year into the process, the husband decides
that they are not going to reach any agreement, even
though his wife has employed an extremely highly
acclaimed and talented attorney. The wife, resistant to
losing her attorney, begs with her husband to continue
discussions. Despite her pleas, the husband notifies the
court that the collaborative law process did not end in
settlement. The wife's attorney, despite her objections,
is required to withdraw, along with the husband's
attorney. Under that situation, the husband would be
able to force the withdrawal of a trusted attorney, over
the objections of his wife.
All of the issues demonstrate the need for a statewide
study of collaborative law, including input from the
State Bar regarding any appropriate changes to the Rules
of Professional Conduct that should accompany any
codification.
SHOULD NOT A STATEWIDE TASKFORCE EXAMINE WHETHER THE
BENEFITS OF WITHDRAWAL OUTWEIGH ANY DETRIMENT TO THE
CLIENT, IN ADDITION TO WHETHER THE RULES OF PROFESSIONAL
RESPONSIBILITY SHOULD BE ALTERRED TO ACCOMMODATE THE
COLLABORATIVE PROCESS?
7. Potential for coercion and unfair bargaining power
Although the supporters and sponsors of AB 402 all tout
the benefits of a non-adversarial method for resolving
these family law disputes, the process may be subject to
abuse.
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The Conference of Delegate's Resolution Committee that
recommended disapproval of the 2005 collaborative law
resolution voiced "concern . . . that parties may feel
coerced into an outcome less favorable than that would
have otherwise [been] achieved due to financial and
emotional exhaustion." As discussed above, if the
process does not result in an agreement, all attorneys,
and all other involved professionals must withdraw and
all discussions are inadmissible. Aside from any
agreements that were entered into, parties are left
without anything to show for their years of discussions,
including any official opinions by any jointly hired
professionals. Accordingly, parties must seek new
attorneys, and hire new professionals, if they have
sufficient funds remaining for those services. The
situation would be even worse in cases of unequal
finances.
Although supporters correctly state that a party may be
drained of their resources through general litigation, or
any other form of dispute resolution, further study of
possible solutions to address the potential for abuse
would be beneficial. As stated above, the sponsor should
consider convening a statewide taskforce to study ways to
minimize the potential for abuse of the collaborative
process.
8. Additional provisions not directly to the
collaborative law process
Recent amendments to the bill include several changes to
the Family Code relating to child custody.
A. Allowing party to request a statement explaining
factual and legal basis for its custody
Current law does not require a superior court to issue
written findings of fact and conclusions of law for
trials of a question of fact. Upon request, that court
"shall issue a statement of decision explaining the
factual and legal basis for its decision as to each of
the principal controverted issues . . ." [Code
Civ. Proc. 632.] Family law courts, by their very
nature, are superior courts, and included within this
provision.
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Accordingly, AB 402 would specifically state that Code
of Civil Procedure Section 632 applies to trials of a
question of fact in a proceeding to determine the
custody of a minor child.
B. Specifically stating the penalty for failure to
comply with a child custody order entered by the
family court
According to supporters, the penalties for violation
of a child custody order issued by a family court are
spread throughout the code sections. Thus, AB 402
would specifically state that failure to comply with a
child custody order may be subject to fine or
imprisonment for contempt of court, pursuant to Code
of Civil Procedure Section 1218, or pursuant to Penal
Code Section 278.5, if the individual "takes, entices
away, keeps, withholds, or conceals a child and
maliciously deprives a lawful custodian of a right to
custody, or a person of a right to visitation."
C. Judicial Council information sheet for parties
involved in child custody and visitation matters
AB 402 would additionally require the Judicial Council
to create an information sheet for parties involved in
child custody and visitation matters. That sheet
would inform parties as to their options, including
ways to avoid court involvement, attorneys practicing
collaborative law, information on accessing court
based self-help services, and information regarding
other sources of assistance in developing a custody
agreement.
The Judicial Council would be required to adopt that
sheet on or before January 1, 2008 and reasonably
attempt statewide distribution of the sheet.
Support: Collaborative Council of the Redwood Empire (in
support of Sections 1 & 2); Collaborative Divorce
Solutions; Collaborative Practice California (in
support of Sections 1 & 2); Family Law Section of
the State Bar of California; Executive Committee of
the Family Law Section of the Los Angeles County Bar
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Page 17
Association; Los Angeles Collaborative Family Law
Association (LACFLA); Sacramento Collaborative
Practice Group; 5 individuals
Opposition: None Known
HISTORY
Source: Unknown (the alleged sponsor stated in the
background materials disavowed sponsorship of the
bill).
Related Pending Legislation: None Known
Prior Legislation: SB 1603 (Oller, 2002), would have
enacted similar provisions concerning the
collaborative law process. (This bill was
referred to the Senate Judiciary Committee and
was never heard.)
Prior Vote: Not relevant. Bill was gutted and amended.
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