BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1031 S
Senator Hollingsworth B
As Amended April 27, 2005
Hearing Date: May 3, 2005 1
Family Code 0
MJM:rm 3
1
SUBJECT
Dissolution of Marriage: Family Education
DESCRIPTION
This bill would require parties seeking dissolution of
marriage or legal separation to attend four hours of family
education if there are children from the marriage.
BACKGROUND
A recent Utah State University study estimated that the
average divorce costs the state and federal governments
$30,000 in terms of social services, remedial education and
other impacted areas.
According to the author, 28 counties in Georgia require
family education for divorcing couples and many other
states have programs that focus on reducing the harmful
effects of separation on children. It is not clear whether
the programs in other states are linked to dissolution or
custody proceedings.
California law currently allows courts to order parties to
a custody dispute to attend counseling if it is in the
child's best interest. Additionally, most counties in
California have "Kids in the Middle" programs available to
help parents understand the impact of their behavior on
children during or after divorce or separation.
(more)
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CHANGES TO EXISTING LAW
Existing law does not require parties seeking dissolution
of marriage or legal separation who have minor children to
attend counseling or education.
Existing law provides that the court may order the parties
in a custody or visitation dispute to participate in
counseling when the dispute poses a substantial danger to
the child's best interests and the counseling is in the
child's best interest. [Family Code Section 3190.]
This bill would provide that parties may not obtain a
dissolution of marriage or legal separation if they have
minor children from the marriage unless both parties
complete four hours of family education from a private
source within 60 days of the filing of the petition for
dissolution or separation, subject to certain exceptions.
COMMENT
1. Stated need for the bill
According to the author's staff, divorce has become so
frequent and easily achieved that many couples mistakenly
assume that as long as they agree to get divorced, their
children will not be impacted. The author contends,
however:
Children are the innocent victims of legal separation
and divorce, and when two parties separate or divorce,
there is a devastating impact on their children who
have had no voice in the decision to disrupt the
family. Often times, these children of divorce are
negatively affected academically, socially,
emotionally, and psychologically as a result of the
stress and trauma placed on the family by the
separation or divorce and by the associated discord
between their parents occasioned by the process.
Severe emotional trauma to the children can have
short-term and long-term negative effects on these
children. Parents pursuing legal separation and
divorce may be unaware or in denial of the harm caused
to their children through the separation or divorce
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process.
The Family Law Section of the California State Bar
(FLEXCOM) disputes the underlying premise that parties
make the decision to divorce lightly and without
considering the consequences to their children. FLEXCOM
contends this bill makes "broad and often inaccurate
assumptions about the effect of divorce on children" and
"completely ignores the reality that many parents are
able to rationally and cooperatively dissolve their
marriage without harming their children." FLEXCOM
further asserts that the bill "fails to take into
consideration that some couples who stay together 'for
the children' are not good parents to their children."
2. This bill would prevent parties from successfully
obtaining a dissolution of marriage unless the education
is "successfully completed"
This bill would require that both parties to a
dissolution or separation attend four hours of family
education focusing substantially on the potential impact
of separation or dissolution on children. The parties
may attend together or separately. This bill provides
that upon successful completion of the education, the
education provider must supply a certificate or letter of
verification, presumably to be given to the court.
FLEXCOM opposes the bill because it does not allow one
party to obtain a dissolution or legal separation unless
the other party has also completed the education. "This
leaves the party wishing to dissolve a marriage in the
position of being unable to divorce without the
cooperation of the other spouse."
The bill would provide exceptions to the education
requirement when service of process is obtained by
publication and the whereabouts of one party are unknown,
when one party is in state prison, when the youngest
child is within 6 months of turning 18 years old, when
one of the parties does not live in the state, when the
parties have been living apart for five years, or when
one party is seeking a default dissolution. However, the
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FLEXCOM maintains that these exceptions are insufficient
because a dissolution may still be blocked by an
uncooperative party who refuses to complete the
education. FLEXCOM notes that the only remedy available
to the party seeking dissolution is contempt proceedings.
Given that the majority of parties in family court are
unrepresented and cannot be expected to know how to file
and properly serve a contempt proceeding, FLEXCOM asserts
the threat of contempt proceedings provide little
deterrent to a stubborn or controlling spouse.
FLEXCOM further argues that family court resources are
already seriously overburdened and that by requiring
additional numerous hearings to force an uncooperative
spouse to attend education classes and provide a document
showing his or her completion, this bill will
significantly add to the resource problem.
3. Is there value in a mandated education class?
The author asserts that "education can benefit the
parties considering legal separation or divorce by
educating them about the short-term and long-term
negative effects that such a decision may have on their
children."
FLEXCOM points out that under current law the court may
order parents to attend counseling in custody disputes
when it is in the child's best interest. Additionally,
most counties have a "Kids in the Middle" program, a
voluntary program for separating parents to help them
understand the impact of their behavior on their children
during and after divorce or separation. FLEXCOM contends
that because California law already provides a six-month
"cooling off period" before dissolutions become final,
parties have ample time to seek education and counseling
voluntarily. FLEXCOM questions the benefit of mandating
certain parties to attend education classes. "While some
percentage of the attendees may learn something from
these classes, those who view it as being forced to
attend may be completely closed to the content."
4. Does this bill provide appropriate options for parties to
obtain the required education?
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This bill would require that the mandated family
education be provided to the parties by licensed
therapists, social workers, counselors, or psychologists,
or by an unlicensed therapist working under the
supervision of one of these. This bill would also permit
parties to obtain the education from a member of the
clergy or a person working under the supervision of a
member of the clergy. Although the author's staff
indicates these options are intended to make it easy for
the parties to obtain the education, these options force
a party to either pay for professional counseling or go
to a church. For working class couples without insurance
benefits or the resources to pay for professional
counseling, the "options" available are not only unfair,
but arguably unconstitutional: go to church or don't get
divorced.
To address this concern, the bill provides that the court
"may provide alternatives as may be necessary to enable a
party to obtain the education required by this section,
if the party demonstrates undue financial hardship."
FLEXCOM wonders what "alternatives" are contemplated by
the author that the court might supply and with what
funds? And notably, the court is not required to provide
alternative, but is only permitted to do so.
Additionally, FLEXCOM disputes the presumption that a
member of the clergy or a person acting under the
supervision of a member of the clergy has the expertise
to provide education on the effects of divorce on
children.
5. If the required education focuses on the effects of
separation on children, are proceedings for dissolution
of marriage or legal separation the appropriate procedure
in which to require family education classes?
Because the focus of the education classes required by
this bill is the effect of dissolution and separation on
children, FLEXCOM points out that "this bill does not
address the reality that people reproduce without the
benefit of marriage. The logical conclusion from reading
this bill is the message that 'divorce is always bad for
children,' yet it fails to deal with all the children
from broken homes where the parents were never married in
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the first place. Wouldn't these children also suffer
from the same categories of problems as children from
divorced parents?"
Support: Capitol Resource Institute
Opposition: Family Law Section of the State Bar of
California
HISTORY
Source: California Family Alliance
Related Pending Legislation: None Known
Prior Legislation: None Known
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