BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1082|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 1082
Author: Morrow (R) and Ducheny (D), et al
Amended: 5/10/05
Vote: 27 - Urgency
SENATE JUDICIARY COMMITTEE : 6-0, 4/26/05
AYES: Dunn, Morrow, Ackerman, Cedillo, Figueroa, Kuehl
NO VOTE RECORDED: Escutia
SENATE APPROPRIATIONS COMMITTEE : 13-0, 5/26/05
AYES: Migden, Aanestad, Alarcon, Alquist, Ashburn, Battin,
Dutton, Escutia, Florez, Murray, Ortiz, Poochigian,
Romero
SUBJECT : Child custody, visitation and support
obligations:
modification for activated, deployed military
personnel
SOURCE : Armed Forces Retirees Association of California
DIGEST : This bill facilitates a process whereby deployed
military personnel can seek a modification of their child
support orders, and makes related changes.
ANALYSIS :
Retroactive Modification of Support Orders
Existing law prohibits a court from modifying a child
CONTINUED
SB 1082
Page
2
support order retroactive to any period of time prior to
the filing and service of a motion or order to show cause
for modification. [42 U.S.C. 666(a)(9), known as the
"Bradley amendment," Section 3651 of the Family Code]
Existing law authorizes, but does not require, a court to
make an order retroactive to the date of filing and notice
of the motion or order to show cause for modification. If,
however, the modification is due to the unemployment of the
support obligor or obligee, the court is required, absent a
finding of good cause, to make the order retroactive to the
date of unemployment or the date of service, whichever is
later. [Section 3653 of the Family Code]
This bill requires the Judicial Council of California to
create a form notice of activation and request for
modification which a service member could use to request a
modification hearing based on the change in income as a
result of the activation and deployment. This form may be
used in lieu of the standard order to show cause or notice
of motion.
This bill requires the court, when modifying a support
obligation based on a change in income attributable to
activation and deployment, to make the order retroactive to
the date of service of the pleading on the other party or
the date of activation, whichever is later. Upon a finding
of good cause and reasons stated on the record, the court
may order that the modification is not retroactive. Good
cause may include a finding by the court that the delay in
seeking the modification was not reasonable under the
circumstances.
Relief from Child Support Interest and Penalties
Existing law provides that interest commences to accrue on
a money judgment on the date of entry of judgment. If a
money judgment is payable in installments, interest accrues
as to each installment on the date the installment becomes
due. Interest accrues at the rate of 10 percent per year.
[Sections 685.010 and 685.020 of the Code of Civil
Procedure]
Existing law authorizes the court to assess penalties for
SB 1082
Page
3
nonpayment of support in egregious instances of
noncompliance with a child support order. [Section 4720 et
seq. of the Family Code]
This bill provides that, for obligor service members who do
not use the streamlined modification process created by
this bill, interest nevertheless does not accrue on the
amount of support that would not have been owed had the
obligor obtained a modified support order to reflect
his/her reduced income as a result of being activated to
military service and deployed out-of-state. Upon a finding
by the court that good cause did not exist for the service
member's failure to seek, or delay in seeking the
modification, this bill permits the court to order that
interest shall accrue as otherwise authorized by law.
This bill, absent a finding of good cause, also prohibits
penalties from being imposed with regard to unpaid support
that accrued because an activated, deployed service member
failed to modify his/her support order prior to deployment
to reflect his/her reduced income.
Compromise of Arrears
Existing law requires the Department of Child Support
Services (DCSS) to establish a program for the compromise
of child support arrears and interest owed to the state.
The amount of the compromise shall take into account the
obligor's ability to pay and must be in the best interest
of the state. [Section 17560 of the Family Code]
This bill declares that, absent a finding of good cause to
the contrary, a compromise shall be in the best interest of
the state in the following circumstance: (1) the support
obligor was a reservist or National Guard member who was
activated and deployed out-of-state, (2) the service member
failed to modify the support order to reflect the reduced
income he/she was paid by the military, (3) arrears
accumulated during the period of deployment, and (4) the
compromise is the amount of support that would not have
accrued if the order had been appropriately modified. This
bill requires DCSS to develop the necessary rules to
implement this provision within 90 days of the effective
date of this bill.
SB 1082
Page
4
Stay of Proceedings
Existing law requires the court, upon application of a
service member, or on its own motion, to grant a stay of 90
days or more in any civil action or proceeding at any time
prior to final judgment if certain conditions are
satisfied. [Servicemembers Civil Relief Act, 50 U.S.C.
Appendix Section 522] The application shall include a
letter setting forth how the current military duty
requirements materially affect the service member's ability
to appear, or a letter from the commanding officer
indicating that the service member's military duty prevents
appearance and that the military leave is not authorized at
that time.
Existing law provides that, upon expiration of the
mandatory stay, the court may grant an additional stay,
upon application of the service member demonstrating that
continuing military duty will have a material affect on
his/her ability to appear. If the court refuses to grant
the additional stay, it shall appoint counsel to represent
the service member. [Servicemembers Civil Relief Act, 50
U.S.C. Appendix Section 522]
This bill restates the requirements of federal law, by
requiring the court to grant a stay of the motion or order
to show cause for modification if the service member's
application cannot be heard prior to deployment. The
requirements for a stay would be consistent with the time
lines and conditions for granting a stay set forth in the
federal Servicemembers Civil Relief Act. This bill further
provides that if an additional stay is requested, and the
court exercises its power not to grant it, the court shall
comply with the federal requirement to appoint counsel for
the service member. If the court stays the proceeding
until after the return of the service member, the service
member shall request the court to set the matter for
hearing within 90 days of return from deployment or the
matter shall be taken off calendar and the existing order
may not be made retroactive, as specified.
Modification of Custody and Visitation Orders
SB 1082
Page
5
Existing law provides that a final custody or visitation
order may be modified by the family court only if some
significant change in circumstances indicates that a
different arrangement would be in the child's best
interest. [ Marriage of LaMusga (2004) 37 Cal.4th 1072,
1088, Burchard v. Garay (1986) 42 Cal.3d 531, 535]
This bill provides that a party's absence from the home or
failure to comply with a custody or visitation order may
not, in and of itself, justify a modification of the order
if the reason for the absence or failure is the party's
activation to military service and deployment out-of-state.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07 2007-08 Fund
DCSS Probably minor costs
General
Courts/Judicial Council Probably not substantial
costs General
SUPPORT : (Verified 5/27/05)
Armed Forces Retirees Association of California (source)
Military Parents Alliance
State Bar Family Law Section
ARGUMENTS IN SUPPORT : According to the authors,
reservists and National Guard, personnel are being
activated to military service with little time to take care
of the many pressing issues that they are leaving behind.
The authors comment that "those with family law issues
cannot get into court before deployment given the amount of
time between orders and the shipping out date. If they
experience a reduction in income due to the activation and
fail to modify their support orders to reflect this reduced
income, they may return from active duty with a substantial
SB 1082
Page
6
amount of arrears having accrued."
The authors' staff points out that this bill does not
change the basic rules for calculation of the amount of
support due and owing. In other words, if the activation
does not affect the amount of the service member's income,
no modification will be called for under the child support
guideline.
The authors also express a concern that in the service
member's absence, court orders have been made
inappropriately altering custody and visitation
arrangements without giving the service member an
opportunity to be heard on the issue.
The Armed Forces Retirees Association of California
(AFRAC), the bill's sponsor, echoes the authors' point,
noting that "for those reservists who are paying child
support, complications ensue if they do not make the
necessary accommodations related to their reduced income
while they serve and they come home to legal problems."
AFRAC notes that federal law prohibits the modification of
a support order for the time period prior to the filing and
service of a request for modification. As a result,
service members who fail to change their support order at
the front end do not have an opportunity when they return
to civilian life to reduce the amount that they should have
owed in the prior period.
Senate Judiciary Committee staff was also contacted by 265
individuals associated with the Military Parents Alliance
expressing their strong support for the bill. These
individuals comment that this bill "will help correct a
terrible injustice currently faced by activated reservists
and National Guardsmen who are noncustodial parents. Today
these service personnel can return from deployment overseas
to find themselves hopelessly in arrears on child support
or even facing jail. Others are taken advantage of
terribly in custody matters while they are deployed."
RJG:mel 5/27/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
SB 1082
Page
7
**** END ****