BILL ANALYSIS
AB 402
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Date of Hearing: August 30, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 402 (Dymally) - As Amended: August 28, 2006
FOR CONCURRENCE
SENATE VOTE : 35-3
SUBJECT : COLLABORATIVE FAMILY LAW
KEY ISSUE : SHOULD A COLLABORATIVE PROCESS FOR RESOLVING
DISPUTES IN FAMILY LAW WITHOUT RESORT TO LITIGATION BE CODIFIED,
AND SHOULD A LEGISLATIVE WORKING GROUP PROCESS BE ESTABLISHED TO
EXPEDITIOUSLY DEVELOP RECOMMENDATIONS FOR IMPLEMENTATION OF SUCH
A PROCESS?
SYNOPSIS
This non-controversial bill enacts the Collaborative Family Law
Act, which codifies an individual's ability to enter into a
collaborative process for resolution of dissolution of marriage
issues outside of court. This bill also requests that the
Senate and Assembly Judiciary Committees convene a working group
of specified members to study and make recommendations on a
comprehensive collaborative law statute, with the goal of
enacting legislation in 2007-08 to provide a procedural
framework for the practice of collaborative family law.
Finally, this bill reiterates that parties to a child custody
proceeding can request a written statement from the court of a
decision containing its factual and legal basis, and requires
the Judicial Council to create an information sheet for parties
involved in child custody and visitation matters.
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."
SUMMARY : Codifies that individuals may participate in
collaborative family law, as specified. Specifically, this
AB 402
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bill :
1)Codifies that individuals may, pursuant to a written
agreement, participate in a collaborative process, as defined,
for dissolution or nullity of marriage or legal separation.
2)States the intent of the Legislature, during the 2007-08
legislative session, to enact legislation setting forth a
procedural framework for the practice of collaborative family
law. Requests that the Senate and Assembly Judiciary
Committees convene a working group of specified members to
study and make recommendations on a comprehensive
collaborative law statute by January 1, 2007.
3)Requires the court, upon request by a party in a proceeding to
determine child custody, to issue a statement of decision
explaining the factual and legal basis of a decision in a
trial on question of fact.
4)Requires the Judicial Council, by January 1, 2008, to create
an information sheet for parties in custody and visitation
matters, as specified.
EXISTING LAW :
1)Grants courts, in a dissolution of marriage proceeding,
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. (Family Code Section
2010.)
2)Allows parties to enter into a collaborative process for
property division by allowing division of the community estate
through arbitration ordered by the court. (Family Code
Section 2554.)
3)Encourages parties to enter into a collaborative process by
presuming that an agreement by the parties for joint custody
is in the best interest of the child. (Family Code Section
3080.)
4)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 Civil Procedure Section 632.)
AB 402
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FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : Resolution of divorce disputes necessarily involves
litigation between the parties. Supporters of the bill content
that the adversarial nature of the litigation puts added strain
on all parties, including any children of the marriage. For
many years, some members of the legal community have
experimented with the use of a more collaborative process to
resolve these differences. The goal of these processes is to
reach an 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. Parties proceed in a form
of assisted mediation to attempt to reach an agreement on any
disputed issues.
This bill enacts the Collaborative Family Law Act, which
codifies the parties' ability to enter into a collaborative
process for dissolution of marriage, nullity of marriage or
legal separation. This bill also requests that the Senate and
Assembly Judiciary Committees convene a working group of
specified members to study and make recommendations on a
comprehensive collaborative law statute, with the goal of
enacting legislation in 2007-08 to provide a procedural
framework for the practice of collaborative family law.
Finally, this bill reiterates that parties to a child custody
proceeding can request a written statement from the court of a
decision containing its factual and legal basis, and requires
the Judicial Council to create an information sheet for parties
involved in child custody and visitation matters.
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."
Further, the author contends that "[h]aving 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."
AB 402
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This bill validates the collaborative law system for resolving
dissolution disputes, but uniform process details must still be
developed . This bill validates the existence of a collaborative
law process for resolving disputes for the dissolution or
nullity of marriage or legal separation. It defines the
collaborative law as the process by which the parties, along
with any professionals they have engaged to assist them, agree,
in writing, to use their best efforts to resolve their family
law disputes without resorting to adversarial judicial
intervention.
This bill does not, however, set out the rules to govern such a
collaborative process. A review of past resolutions of the
Conference of Delegates of California Bar Associations -- which
disapproved a collaborative law resolution in 2004 and whose
Resolutions Committee again recommended disapproval in 2005
(although the full committee voted to approve) -- reveals a lack
of consensus as to what those rules should be. As a result,
this bill directs the Assembly and Senate Judiciary Committees
to convene a working group to study and make recommendations for
uniform rules for collaborative law's procedural framework. The
working group must include family lawyers, including members of
the State Bar's Family Law Section Executive Committee, as well
as representatives from the judicial, executive and legislative
branches and members of the public. It is the intent of the
Legislature, as stated by the bill, that legislation be enacted
in the 2007-08 legislative session to provide the procedural
framework for collaborative law. The recommendations of the
working group, which are requested by January 1, 2007, should
help enlighten and develop any such legislation.
The bill also contains two other, more minor family law
provisions . The bill also contains two other family law
provisions. First, 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 Civil Procedure Section 632.)
Family law courts, by their very nature, are superior courts,
and included within this provision. This bill confirms current
law by specifically stating 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.
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This bill also requires 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, information
on accessing court based self-help services, and information
regarding other sources of assistance in developing a custody
agreement. The Judicial Council must adopt that sheet on or
before January 1, 2008 and must reasonably attempt statewide
distribution of the sheet. Developing a statewide information
sheet may prove a challenge to the Judicial Council since local
courts do not always have the same services available, but the
information should help the estimated 70 percent of litigants in
family law proceedings who are unrepresented.
Prior Legislation : SB 1603 (Oller, 2002) would have enacted a
collaborative family law process. The bill was referred to the
Senate Judiciary Committee and was never heard.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334