BILL ANALYSIS
SB 1082
Page 1
Date of Hearing: June 21, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1082 (Morrow and Ducheny) - As Amended: May 10, 2005
PROPOSED CONSENT
SENATE VOTE : 40-0
SUBJECT: CHILD CUSTODY AND SUPPORT OBLIGATIONS: MILITARY
PERSONNEL
KEY ISSUE: IN ORDER TO PROVIDE TIMELY AND NECESSARY RELIEF,
SHOULD ACTIVATED SERVICE MEMBERS DEPLOYED OUT-OF-STATE BE
PERMITTED A STREAMLINED PROCESS FOR MODIFICATION OF THEIR CHILD
SUPPORT OBLIGATIONS AND, IF THEY ARE UNABLE TO SEEK SUCH
MODIFICATION BEFORE THEIR DEPLOYMENT, SHOULD INTEREST AND
PENALTIES ACCRUED ON THEIR CHILD SUPPORT OBLIGATIONS DURING
THEIR DEPLOYMENT BE LIMITED?
SYNOPSIS
This non-controversial urgency legislation, sponsored by the
Armed Forces Retirees Association of California, seeks to
provide relief from child support obligations for activated
reservists and National Guard members who have their income
reduced as a result of their activation. This bill would
facilitate the process for service members to seek a
modification of their child support orders prior to deployment
out-of-state. The bill would, additionally, if the court cannot
set the matter for hearing prior to the deployment, preserve the
service member's ability to modify the support order
retroactively to the date of deployment or date of filing of the
modification petition, whichever is later, to reflect any change
in income resulting from the activation to military service.
The bill would also require Department of Child Support Services
(DCSS) to develop and distribute a form which, if completed by
service members who have a case through the local child support
agency, will require the local agency to bring a motion to
modify the order, without the need for the service member to be
present. For service members who do not utilize either of these
procedures to seek modification of their support orders, the
bill would provide that interest does not accrue on any unpaid
child support that would not have been due and owing had the
SB 1082
Page 2
service member modified the order to reflect his or her reduced
military income. The bill would also prohibit penalties from
being assessed against that same portion of unpaid support. The
bill would additionally provide that the fact of a person's
deployment out-of-state, in and of itself, cannot be used by the
court as grounds for modification of a custody or visitation
order. This bill is supported by The Family Law Section of the
State Bar and the Military Parents Alliance. There is no
opposition.
SUMMARY : Provides for modification of child custody,
visitation and support obligations for active duty military
personnel. Specifically, this bill :
1)Requires the Judicial Council, within 90 days after the
effective date of this bill, to create a form notice of
activation and request for modification, containing specified
information, which a service member can use to request a
modification hearing based on the change in income as a result
of the activation and deployment. This form must be in plain
language and may be used in lieu of the standard order to show
cause or notice of motion.
2)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.
3)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 or 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 would permit the court
to order that interest shall accrue as otherwise authorized by
law. Prohibits, absent a finding of good cause, penalties
from being imposed with regard to unpaid support that accrued
SB 1082
Page 3
because an activated, deployed service member failed to modify
his or her support order prior to deployment to reflect his or
her reduced income.
4)Requires DCSS to work with the military and the National Guard
to provide information to service members regarding their
rights to modification or compromise of their support order
based on their activation. Requires DCSS, within 90 days of
the effective date of this bill, to develop a form for service
members to use that would allow the local child support agency
to seek a modification without the presence of the service
member.
5)Declares that, absent a finding of good cause to the contrary,
a compromise of child support arrears owed to the state shall
be in the best interest of the state if the support obligor
was a reservist or National Guard member who was activated and
deployed out-of-state and the service member failed to modify
the support order to reflect the reduced income he or she was
paid by the military. The bill would require DCSS to develop
the necessary rules to implement this provision within 90 days
of the effective date of this bill. This section specifically
applies to all service members deployed out of state,
regardless of their date of deployment.
6)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. The bill would further provide 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.
7)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.
8)Declares the urgency of this legislation in order to ensure
the rights of soldiers and sailors who return from active duty
in Iraq and Afghanistan before December 31, 2005 are
SB 1082
Page 4
protected.
EXISTING LAW :
1)Prohibits a court from modifying a child 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); Family Code Section 3651.)
2)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.
(Family Code Section 3653.)
3)Provides that interest commences to accrue at the rate of 10
percent per year 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. (Code of Civil Procedure Sections
685.010 and 685.020.)
4)Authorizes the court to assess penalties for nonpayment of
support in egregious instances of noncompliance with a child
support order. (Family Code Section 4720 et seq .)
5)Requires 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.
(Family Code Section 17560.)
6)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. The application must set
forth how the current military duty requirements materially
affect the service member's ability to appear. 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 or her ability to appear. If the court
SB 1082
Page 5
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.)
7)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)
32 Cal.4th 1072; In re Marriage of Burgess (1996) 13 Cal.4th
25.)
FISCAL EFFECT : This bill as currently in print is keyed
fiscal.
COMMENTS : The wars in Afghanistan and Iraq and the resulting
military deployments have especially significantly affected
service members and their families. Many service members,
particularly those called up from the National Guard, have seen
their pay drop significantly during the period of their
deployment. This non-controversial urgency legislation,
sponsored by the Armed Forces Retirees Association of
California, seeks to provide relief from child support
obligations for activated reservists and National Guard members
who have had their income reduced as a result of their
activation.
In 2003, Congress updated the former Soldiers' and Sailors'
Civil Relief Act, and enacted the new Servicemembers Civil
Relief Act (SCRA), "to provide for, strengthen, and expedite the
national defense . . . to enable [service members] to devote
their entire energy to the defense needs of the Nation; and to
provide for the temporary suspension of judicial and
administrative proceedings and transactions that may adversely
affect the civil rights of servicemembers during their military
service." (50 U.S.C. Appendix Section 502.) The SCRA, among
other things, prohibits default actions against service members
deployed out of the United States, limits the amount of interest
that may be assessed on debts that accrued prior to deployment,
and requires a stay of proceedings if the service member's
military duty materially affects his or her ability to appear.
The SCRA does nothing, however, to address a service member's
ongoing child support obligation. For many service members,
their income is reduced when activated to military service. A
child support order does not change to reflect reduced income,
SB 1082
Page 6
however, unless action is taken to seek a court-ordered
modification. Whether it is because of the difficulty of
preparing a court filing and obtaining a hearing before
deployment, or because the service member is not aware of the
ability or need to modify the order, there has been increased
attention of late to service members who return to California
with substantial child support arrears that accrued solely
because they were serving their country and earning too little
to meet their existing support obligation.
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:
Military personnel, in particular National Guardsmen
with support orders, face automatically becoming
criminals because of short activation times. A
guardsmen can be activated in as little as 72 hours
and suffer a significant pay decrease when
transitioning from civilian to military life. Because
of the federal government's prohibition on retroactive
child support modifications, those who serve in good
faith automatically fall in arrears because the courts
are unable [to] hear their cases before deployment.
Bill seeks to balance hardships between parents . This bill
seeks to balance the hardship to the service member who may be
called up on short notice with the potential hardship of a
delayed, retroactive modification of support on the support
obligee, who is relying on the support to feed, clothe and
shelter the family. Under this bill, if for whatever reason
the service member fails to pursue a modification order in a
reasonable manner, that service member would still be entitled
to retroactive application of any later obtained modification
order (which could be months or years later, but which would
relate back to the original filing date or service of the
modification petition), as well as to the waiver of penalties
and non-accrual of interest for the non-payment of that part of
the support obligation which could have been modified but was
not. However, the bill would provide that the court, upon a
showing of good cause and for reasons stated, may decline to
make a modification retroactive. The bill would further clarify
that good cause shall include, but not be limited to, a finding
that the delay in seeking the modification was not reasonable
SB 1082
Page 7
under the circumstances.
Interest and penalties on support that should not have accrued
is waived . Interest on child support obligations has been the
subject of some legislative debate in the past several years.
Efforts were made to, among other things, reduce the interest
rate, not assess interest on support obligations owed by
incarcerated individuals and change the way child support
payments are credited so that payments are credited first to the
principal balance and only after that to interest. Generally,
the Legislature has not favored the forgiveness or waiver of
interest on unpaid child support.
This bill would provide that, if a service member fails to take
advantage of the opportunity to file a form notice of activation
to military service, thereby fixing the date for modification,
the child support order nevertheless does not accrue interest,
and penalties would not attach, on that amount owed and unpaid
which would not have accrued if the support order had been
properly modified. The authors believe that, no matter how
streamlined and simplified the modification process is made,
service members still often have only a handful of days to
address a huge variety of critically important issues affecting
their lives and the lives of their loved ones prior to
activation and deployment. Although a service member who fails
to file the appropriate modification request will not get the
benefit of the reduced amount of support, the bill would
prohibit interest from being assessed on the amount of support
that would not have been owed if the modification occurred.
While this provision would provide special treatment for service
members who fail to obtain modification orders as compared to
other non-military obligors who fail to modify their orders, the
authors assert that the fact these individuals are putting their
lives on the line to protect the nation, justifies this special
treatment.
Compromise provisions intended to aid service members who have
not been able to benefit from the streamlined modification
provisions. This bill would also amend DCSS's existing
compromise of state-owed arrears program to add a special
provision to benefit support obligors who owe money to the state
because of the state's provision of child support payments to
the soldier's child. Where the reservist or National Guard
member was activated and deployed out-of-state, and where he or
she failed to modify the support order to reflect his or her
SB 1082
Page 8
reduced military income, and where arrears accumulated during
the period of deployment, this bill would declare as a matter of
law that a compromise (of the obligor's debt to the state) is in
the best interest of the state when the compromise is to forgive
the amount of support that would not have accrued if the
modification order had been timely obtained. This determination
that it is in the best interests of the state could be
overridden with good cause, including a finding the delay in
seeking the modification, or failure to seek the modification at
all, was not reasonable under the circumstances.
This provision is intended in large part to benefit returning
reservists and National Guard members who were deployed months
or years ago, and are thus not in a position to take advantage
of the bill's special modification procedures. This compromise
provision, however, would also apply to those soldiers who were
activated and deployed after the effective date of the bill, but
who failed to use the special procedures. Considerations about
the hardship to the support obligee don't apply because the debt
is to the state. Instead, the burden of any shortfall of
revenue resulting from the compromises would fall on the
California taxpayer. The good cause exception that would allow
DCSS to not issue the compromise is intended to allow DCSS to
better balance those interests where the service member's
actions - or inaction - were more egregious.
Limit modification of custody or visitation orders due to
deployment . Under current law, 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. This bill
would provide 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 that order if the reason for
the absence or failure is the party's activation to military
service and deployment out-of-state. This provision is designed
to prevent a parent from losing custody or visitation with his
or her child based solely on that parent's out-of-state
deployment.
Related Pending Legislation : AB 265 (Haynes), which would
prohibit a court from modifying a custody order if the party who
was granted custody of the child is a member of the California
National Guard and he or she has been called to active duty,
with exceptions, is a two-year bill in this Committee.
SB 1082
Page 9
REGISTERED SUPPORT / OPPOSITION :
Support
Armed Forces Retirees Association of California (sponsor)
California Association of County Veterans Service Officers
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334