BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1483 S
Senator Alquist B
As Amended April 17, 2006
Hearing Date: April 25, 2006 1
Family Code 4
BCP:cjt 8
3
SUBJECT
Child Support Modification Orders
DESCRIPTION
This bill would create a five-county pilot project to
expedite the uncontested modification of child support
orders upon request by a local child support agency.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
In California, county courts currently face substantial
demands on their limited resources, resulting in hearing
delays of up to 120 days. Local county child support
services departments, seeking ways to reduce burdens on
county departments and the courts, propose this pilot
project based upon Hawaii's expedited child support
modification system.
In Hawaii, the Office of Child Support Hearings system
allows modification of uncontested child support orders
without a formal hearing. That process requires
notification of the parties to the proposed modification.
Either party can then object to the modification and
request a hearing on the matter. The expedited process
reduced Hawaiian administrative hearings by one-third.
The present bill seeks to adopt a version of that process.
(more)
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Somewhat analogous to the Hawaiian process, parties would
be served with a proposed order, offered the opportunity to
object, and the court may enter orders for non-objecting
parties without holding a formal hearing. Allowing
expedited orders in uncontested cases would save both court
and county child support services time and cost.
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CHANGES TO EXISTING LAW
Existing law makes local child support agencies responsible
for establishing, modifying and enforcing child support
obligations. [Fam. Code 17400.]
Existing law allows individuals seeking modification of
their child support orders to either contact their local
child support agency or file a motion with the court
requesting modification. [Fam. Code 3651, 17400.]
Existing law provides a formula to calculate the state
guideline child support. Courts have discretion to deviate
from this calculation when necessary. [Fam Code.
4055-56.]
Existing federal law conditions grants of funds to states
under the Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA) upon the creation of expedited
procedures for the establishment, modification and
enforcement of child support. [42 U.S.C. 654, 666.]
Existing law provides for an expedited child support order
process to provide support during the pendency of a support
action. [Fam. Code 3621 et seq.]
This bill would establish a procedure for the expedited
modification of child support orders. Local child support
agencies could seek modification of child support orders
when those orders are not in substantial conformance with
state guidelines. (The bill would not apply to
modification orders sought solely by a parent.)
This bill would require agencies to serve instructions, a
copy of the application to modify child support, a child
support guideline worksheet, the proposed order of support
and objection to modification and request for hearing upon
both parties. Parties would have 30 days to file their
objection along with their completed income and expense
form and either their three most recent pay stubs or tax
return.
This bill would require the court to set a hearing for the
objection. At that hearing, the court may enter a child
support order in compliance with state guidelines.
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This bill would allow local child support agencies to file
the proposed order and declaration in support of the order,
including a statement verifying service on the parties and
absence of received objection. The court may issue a final
order upon receipt of those documents. No process is
currently included for objections received after the 30-day
time frame to object. The author commits to working on
language with Judicial Council for an appeals procedure.
This bill would provide that any order modified pursuant to
this section be effective the first day of the month
following the date of service of the application to modify
child support on the parties.
COMMENT
1. Author's amendments to be offered in committee
The author proposes to amend the bill as follows:
a) Page 3, lines 16-17, strike "The court shall set the
matter for hearing within 45 days of receipt"
b) Page 3, line 20, strike "shall" and insert "may"
c) Commitment to working on language with Judicial
Council for an appeals procedure to vacate expedited
child support modification orders for individuals who
were not properly served, prior to SB 1483 leaving Senate
Appropriations.
These amendments address concerns about the removal of
court discretion, calendar preference, and lack of an
appeals process in the current bill. (See Comments 3 and
6.)
2. Stated need for the bill
According to the author, federal law "requires states to
have an expedited process for modification of child
support orders." While an existing procedure already
exists for expedited creation of child support orders, no
procedure exists for modification of those orders. The
author contends that this bill would address "that
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deficiency by establishing pilot projects in five
California counties - Alameda, Fresno, Orange, San Mateo
and Santa Clara - to test the use of an expedited process
for child support modifications."
Proponents, the Child Support Directors Association
(CSDA), contend that this expedited procedure will reduce
court workload and thus court time and cost required to
modify these orders. CSDA adds that "[t]he proposed
procedure would reduce the number of cases that go
through the court process, thus enabling the courts to
calendar and hear the cases that must be heard by the
court in a timelier manner." CSDA's letter of support
also indicates that they expect this procedure to
"increase the percentage of current support collected,
reduce the accrual of arrears, and increase the
cost-effectiveness of [local child support agencies]."
Finally, materials submitted by the author's office on
Hawaii's expedited program contend that "transfer of
Hawaii's proposed order practice [to] California would
present virtually no implementation challenges . . . the
Hawaiian practice is nearly identical to California's
proposed judgment practice."
3. Court discretion
Initial concerns over SB 1483 focused on the removal of
judicial discretion both when local child support
agencies submit proposed orders and at hearings for
objecting parties. Sponsors indicate that their
intention was not to remove existing judicial discretion
exercised by the court. The author's proposed amendments
clarify that the court may, but is not required to enter
an order in compliance with state child support
guidelines. This discretion is especially important
during hearings modifying orders for child support.
For example, both parties could be served by the local
child support agency with the required documents. One
party could object to the proposed support order, request
a hearing, and submit the required documents. At the
proposed hearing, the court initially uses the state
guideline formula to calculate the proper child support.
Initial calculations could require child support payments
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such that the individual is placed well under the poverty
line. In that instance, the court has discretion to
modify child support as necessary while still considering
the best interests of the child. Removal of court
discretion in this instance could force courts to enter
child support orders that force individuals well below
the poverty line.
4. Inconsistencies in service requirements
Under subdivision (c) of proposed Family Code Section
17441, SB 1483 would require service of the required
documents according to the Code of Civil Procedure. In
subdivision (g) of the same section, SB 1483 refers to
that service according to Civil Procedure Section 1013.
Specifically, Section 1013 refers to service by mail,
express mail, or fax.
Earlier versions of the bill referenced Section 1013 of
the Code of Civil Procedure in subdivision (c), but the
April 17, 2006 amendments removed that reference. By
removing reference to that specific section, service is
allowed according to any allowable method under the Code
of Civil Procedure. The Code of Civil Procedure only
allows service by mail to an individual's residence,
office with delivery service, or between individuals who
regularly communicate by mail. Allowing service by mail,
when allowed, could generate cases where an individual
does not actually receive notice within the 30 day
timeframe.
For example, a local child support agency could serve an
individual by mail with the required information at their
residence, as allowed under the Code of Civil Procedure.
The individual may be out of town on vacation, or
otherwise not at the residence for an extended period of
time. After 30 days without objection, this pilot project
would allow a local child support agency to file the
proposed order with the court. As discussed below, the
author has committed to working with Judicial Council on
language for an appeals process to partially address this
concern.
SHOULD PERSONAL SERVICE, UNDER CIVIL PROCEDURE SECTION
1011 BE REQUIRED UNDER BOTH SECTION (C) AND (G) TO
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PREVENT PROBLEMS THAT ARISE WHEN USING SERVICE BY MAIL?
6. Unclear appeals process if notice was not received
As mentioned above, SB 1483 allows a court to enter a
final order of modification of child support if no
objection is received within 30 days. No appeals process
is described for individuals who do not receive proper
notice by the local child support agency. The author has
committed to work with Judicial Council on language to
develop an appropriate appeals process. This appeals
process would allow for the expedited child support
modification order to be vacated by the court in cases
where notice was not properly served.
This situation may arise as follows: an individual may
notice that a different amount of child support is being
deducted from his paycheck. That individual contacts the
county and discovers that a proposed child support
modification order was allegedly served on him several
months ago. The local child support agency submitted the
proposed order along with the declaration stating that
the individual was properly served. The author's
proposed appeals process would allow this individual to
set aside the expedited child support modification order
due to lack of notice.
7. Proposed process
SB 1483's proposed process would proceed as follows:
The local child support agency would determine that a
child support order is not in substantial conformity with
state guidelines. The agency then serves both parties
with an application to modify child support, guideline
worksheet, proposed order of support, objection to
modification and request for hearing, and instructions.
Parties have 30 days to serve their objection and
supporting documents.
Upon receipt of any objection, the local child support
agency must then file the objection with the court. The
court must set the matter for hearing, at which time the
court may enter an order for child support in accordance
with state child support guidelines.
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If no objection is received, the agency may file their
proposed order along with a declaration stating that
parties were served with the proposed order and no
objection was received. The court may then issue a final
order upon receipt of those documents without further
hearing or evidence.
8. Effective date of order
Orders modified under the proposed pilot project would be
effective on the first day of the month following the
date that service of the proposed order on the parties is
completed. Courts have discretion to change this date
upon a showing of good cause. As written, this creates a
scenario where the final order is deemed effective prior
to the date it was entered.
For example, if parties were served with a proposed order
on April 25th, and a hearing on an objection was held on
June 1st, any order entered under this section would be
effective on May 1st, a month prior to the hearing.
While this would ensure that parties' payment of child
support complies with their obligations, it is strange
that this bill makes an order retroactive without stating
that they are retroactive.
SHOULD ORDERS ENTERED PURSUANT TO THIS SECTION INSTEAD BE
EFFECTIVE UPON GRANTING OF THE MODIFIED CHILD SUPPORT
ORDER?
9. Hawaii's Office of Child Support Hearings, compared
Proponents assert that the proposed system is virtually
identical to the already enacted Hawaiian system. If
California's results mirror those of Hawaii, courts and
local child support agencies can expect around a
one-third reduction in noticed hearings in these matters.
This reduction would save both the courts and local
child support agencies the time and cost of preparing for
these hearings.
Unlike California, the Hawaiian system is an
administrative process. Orders issued through this
administrative process have the same effect as family
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court orders establishing, modifying, or enforcing child
support. Parents may elect to initiate child support
proceedings either in juvenile family courts or through
administrative hearings, while actions by the Hawaiian
Child Support Enforcement Agency (HCSEA) must take place
in administrative hearings. Supporters contend that an
administrative hearing process need not be considered in
California "as it appears there is no advantage in terms
of efficiency or effectiveness between the two models for
dispute resolution."
As in the process proposed by this bill, individuals in
Hawaii are notified of a proposed order and given the
opportunity to request a hearing. Unlike SB 1483's
process, Hawaiian parents seeking to contest a proposed
order must merely file a written request for hearing
within the appropriate timeframe. [HRS 576E-6.] In
contrast, SB 1483 requires filing of the objection,
completed income and expense declaration and either the
three most recent pay stubs or most recent income tax
return. SB 1483's additional filing requirements both
provide the court with information as to why the proposed
order is contested, and place a higher burden on the
objecting parent.
Support: San Mateo County Board of Supervisors; County of
Fresno Board of Supervisors; Child Support Directors
Association (CSDA); San Mateo County Board of
Supervisors; Orange County Board of Supervisors;
Alameda County Department of Child Support Services
Opposition: None Known
HISTORY
Source: Orange County Department of Child Support Services;
Fresno County Department of Child Support Services;
San Mateo County Department of Child Support Services
Related Pending Legislation: None Known
Prior Legislation: None Known
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