BILL ANALYSIS
SB 1082
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Date of Hearing: June 28, 2005
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Mike Gordon, Chair
SB 1082 (Morrow and Ducheny) - As Amended: May 10, 2005
SENATE VOTE : 40-0
SUBJECT : Child support: military reservists
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 hearing
based on the change in income as a result of military activation
and deployment.
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.
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.
4) Provides that 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.
5) Prohibits, absent a finding of good cause, penalties from
being imposed with regard to unpaid support that accrued because
an activated, deployed service member failed to modify his or
her support order prior to deployment to reflect his or her
reduced income.
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6) Requires Department of Child Support Services (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 and
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.
7) 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.
8) 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.
9) 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.
10) 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 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.
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
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cause, to make the order retroactive to the date of unemployment
or the date of service, whichever is later.
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.
4) Authorizes the court to assess penalties for nonpayment of
support in egregious instances of noncompliance with a child
support order.
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.
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 refuses to
grant the additional stay, it shall appoint counsel to represent
the service member.
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.
FISCAL EFFECT : Unknown
COMMENTS : The bill is intended to provide financial relief for
activated reservists and National Guard personnel who experience
a reduction in income due to activation, by establishing a
process whereby they may seek a modification of their child
support orders.
According to the authors, reservists and National Guard
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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 maintain that "those with family
law issues cannot get into court before deployment given the
amount of time between orders and the shipping out date. A
guardsmen can be activated in as little as 72 hours and often
suffer a significant pay decrease when transitioning from
civilian to military life. 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 amount of arrears having accrued.
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. Sponsors of the
bill argue that a service member's fulfillment of duty should
not be allowed to be a device to deprive him or her of child
visitation.
This bill requires the court, except as otherwise specified,
when modifying or terminating a child support order based on a
change in income resulting from the activation to military
service or National Guard duty and deployment overseas, to make
the order retroactive to the date of service on the other party
or the date of activation, whichever is later. It also
establishes related procedures for an expedited modification.
In addition, the bill prohibits the accumulation of interest and
penalties, in certain circumstances, on the amount of support,
and requires Judicial Council to develop related forms.
This bill also requires DCSS to work with the military and
National Guard to inform service members of their ability to
have support orders modified based on a change in income, and to
develop a related form.
PREVIOUS HEARING: This bill was heard in the Assembly Committee
on Judiciary on June 21, 2005 and was passed with a vote of 9-0.
REGISTERED SUPPORT / OPPOSITION :
Support
Armed Forces Retirees Association of California (sponsor)
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California Association of County Veterans Service Officers
Opposition
None on file
Analysis Prepared by : Tim Valderrama / V. A. / (916) 319-3550