BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 939 (Committee on Judiciary)
As Amended June 17, 2010
Hearing Date: June 29, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
Family Law Proceedings
DESCRIPTION
This bill would make various changes to family law proceedings
thereby implementing a number of the legislative recommendations
issued by the Elkins Family Law Task Force.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
The Elkins Family Law Task Force chaired by Associate Justice
Laurie D. Zelon of the Court of Appeal, Second Appellate
District, Division Seven was appointed in May 2008 for the
purpose of conducting a comprehensive review of family law
proceedings in order to make recommendations to the Judicial
Council that would increase access to justice for family law
litigants; ensure fairness and due process; and provide for more
effective and consistent family law rules, policies, and
procedures. The task force was formed at the suggestion of the
California Supreme Court in Elkins v. Superior Court (2007) 41
Cal.4th 1369.
In Elkins, the Supreme Court reviewed a local court rule and a
trial scheduling order in the family court that required parties
to present their cases and establish the admissibility of all
the exhibits they sought to introduce at trial by declaration.
The Court found that the local rule conflicted with existing
statutory law and deprived litigants of meaningful access to the
(more)
AB 939 (Committee on the Judiciary)
Page 2 of ?
courts. In its decision, the Court recognized that the
increasing numbers of self-represented litigants present unique
challenges to the courts' ability to provide meaningful access
to justice. The Court emphasized that if trial courts do not
have adequate resources for family law cases, they should seek
additional resources instead of putting efficiency ahead of
fairness. Accordingly, the Court suggested that the Judicial
Council establish a task force to study and propose measures to
assist trial courts in achieving efficiency and fairness in
marital dissolution proceedings, while ensuring access to
justice for litigants.
The task force conducted a comprehensive review of family courts
during the past two years through in-person meetings, conference
calls, and outreach to family court stakeholders and litigants.
The final report contains twenty-one main recommendations that
generally cover the following five aspects of family court: (1)
efficient and effective procedures to help ensure justice,
fairness, due process, and safety; (2) more effective child
custody procedures for a better court experience for families
and children; (3) ensuring meaningful access to justice for all
litigants; (4) enhancing the status of, and respect for family
law litigants and the family law process through judicial
leadership; and (5) laying the foundation for future innovation.
The Judicial Council accepted the report on April 23, 2010.
The final report can be found at
http://www.courtinfo.ca.gov/jc/tflists/documents/elkins-finalrepo
rt.pdf.
While many of the Task Force's recommendations may be
implemented by the courts, whether through Rule of Court or even
informal policy change, many others require statutory changes.
This bill seeks to implement most of the Task Force's key
legislative recommendations.
CHANGES TO EXISTING LAW
1.Existing law provides that no modification of a dissolution or
paternity judgment or permanent order regarding custody,
visitation, or support is valid unless prior notice is served
on the parties as otherwise permitted. (Fam. Code Sec. 215.)
This bill would provide that a postjudgment motion to modify a
custody, visitation, or child support order may be served on
the opposing parties by first-class mail, provided the proof
of service includes an address verification.
AB 939 (Committee on the Judiciary)
Page 3 of ?
2.Existing caselaw provides that evidentiary declarations may be
used in lieu of live testimony in a postjudgment modification
of support and attorney fees. (In re Marriage of Reifler
(1974) 39 Cal.App.3d 479.)
Existing caselaw provides that family law proceedings are
governed by the same statutory rules of evidence and procedure
that apply in other civil actions, and courts do not have the
authority to adopt rules that deviate from this law. Existing
caselaw further provides that a litigant has a right to
present evidence at trial and, although the court can exclude
otherwise admissible evidence because it is unduly
time-consuming, prejudicial, confusing, or misleading, the
outright denial of the right to present evidence is error.
(Elkins v. Superior Court (2007) 41 Cal.4th 1369.)
This bill would provide that, absent a finding of good cause,
a family law court shall receive any live, competent testimony
that is relevant and within the scope of the hearing. This
bill would further require the court to state its reasons on
the record if it makes a finding of good cause, and require
the Judicial Council to adopt a statewide rule of court
regarding factors a court shall consider in making a finding
of good cause by January 1, 2012.
This bill would provide that a party seeking to present live
testimony from witnesses other than the parties shall, prior
to hearing, file and serve a witness list with a brief
description of the anticipated testimony. If the witness list
is not served prior to the hearing, the court would be able to
grant a brief continuance and make appropriate temporary
orders pending the continued hearing.
3.Existing law requires the court, in any dissolution, child
support, or exclusive custody proceeding, to ensure that each
party has access to legal representation in order to preserve
each party's rights by ordering, if necessary based on an
income and needs assessment, one party, other than a
governmental entity, to pay the other party's attorney's fees.
(Fam. Code Secs. 2030, 3121, 3557.)
This bill would require the court, in any dissolution, child
support, or exclusive custody proceeding where one party has
requested that the other party pay attorney's fees, to make
findings on whether an award of attorney's fees is
AB 939 (Committee on the Judiciary)
Page 4 of ?
appropriate, whether there is a disparity in access to retain
counsel, and whether one party is able to pay for legal
representation for both parties. If the findings so
demonstrate, this bill would require the court to award
attorney's fees and costs.
This bill would require, by January 1, 2012, the Judicial
Council to adopt a statewide rule of court to implement these
provisions and develop a form for the information that shall
be submitted to the court to obtain an award of attorney's
fees.
4.Existing law provides that all dissolution actions, to the
greatest extent possible, be assigned to the same superior
court department in order that all decisions in a case be made
by the same judicial officer. (Fam. Code Sec. 2330.3.)
This bill would provide that the dissolution action need not
be assigned to the same superior court department for all
purposes if the assignment will result in significant delay of
any family law matter, unless the parties stipulate otherwise.
5.Existing law allows for dissolution of a short-term marriage
by summary proceedings if specified conditions are satisfied,
including that there are no children of the relationship, that
the marriage is not more than five years from the date the
joint petition for summary dissolution is filed, and that
specified asset and debt limitations are met. Existing law
requires that the proceeding be commenced by the filing of a
joint petition. (Fam. Code Secs. 2400-2401.) Existing law
allows the court, upon application of either party, to enter a
judgment of dissolution six months after filing of the joint
petition for summary dissolution. (Fam. Code Sec. 2403.)
This bill would require the court to enter a judgment of
dissolution six months after the joint petition for summary
dissolution is filed unless either party has filed a
revocation of the joint petition. This bill would specify
that, to be eligible for summary dissolution proceedings, the
marriage can be no more than five years as of the date of
separation.
6.Existing law authorizes case management in dissolution
proceedings on stipulation of the parties. (Fam. Code Secs.
2450-51.)
AB 939 (Committee on the Judiciary)
Page 5 of ?
Existing law requires case management in civil cases. (Gov.
Code Sec. 68607; Rules of Court 3.720 et seq.)
This bill would allow the court, in a dissolution proceeding,
to order a family- centered case resolution plan, even in the
absence of a stipulation by the parties. This bill would
specify that the case resolution plan does not provide the
court with any additional authority to appoint an expert,
beyond that permitted under other provisions of law.
7. Existing law provides that if allegations of child sexual
abuse are made during a child custody proceeding, the court
may take any reasonable steps to protect the child, including
making a referral to the local child welfare services agency.
(Fam. Code Sec. 3027.)
This bill would instead provide that if allegations of child
abuse, including child sexual abuse, are made during a child
custody proceeding, the court may take any reasonable steps to
protect the child, including making a referral to the local
child welfare services agency.
8. Existing law provide that the court, in a custody or
visitation proceeding, may appoint minor's counsel if such
appointment is in the best interests of the child. Existing
law allows minor's counsel to present the court with facts,
including the child's wishes when counsel deems it
appropriate. Existing law requires minor's counsel, at the
court's request, to prepare a written statement of the issues
and contentions for the court. (Fam. Code Secs. 3150-51.)
This bill would provide that a court may appoint minor's
counsel, if appropriate, if the court and the counsel comply
with specified rules of court. This bill would require that
minor's counsel present the child's wishes to the court if the
child so desires. This bill would require minor's counsel to
serve notices and pleadings on all parties, consistent with
requirements for parties.
9. Existing law allows child custody mediators, consistent with
local rules, to submit custody recommendations to the court.
(Fam. Code Sec. 3183.)
This bill would allow child custody mediators, consistent with
local rules, to submit custody recommendations to the court,
AB 939 (Committee on the Judiciary)
Page 6 of ?
provided the mediator has provided the parties and their
attorneys, including minor's counsel, with the
recommendations, in writing, in advance of the hearing.
This bill would provide that, in courts where a mediator
submits a recommendation to the court, the mediation and
recommendation process shall be referred to as "custody
negotiation and recommendation," and the mediator shall be
referred to as a "custody recommender."
10. Existing law allows the court, when issuing a domestic
violence protective order, to issue temporary custody and
visitation orders and, if certain conditions are met, to
establish a parent-child relationship. (Fam. Code Sec. 6323.)
This bill would allow the court, when issuing a domestic
violence protective order, to accept a stipulation of
paternity by the parties and, where paternity is uncontested,
to enter a judgment of paternity.
This bill would allow the court, in a domestic violence
protective order issued after a noticed hearing, to determine
if custody, visitation, or support orders issued as part of
that protective order survive termination of the protective
order.
11. Existing law provides that whenever a county child welfare
social worker has reason to believe that a child in the county
has suffered, or there is substantial risk that the child will
suffer, abuse or neglect, the social worker shall immediately
make any investigation he or she deems necessary to determine
whether child welfare services should be offered to the family
and whether proceedings in the juvenile court should be
commenced. (Wel. & Inst. Code Sec. 328.)
Existing law allows a child's juvenile court case files to be
inspected by a judge, commissioner or other hearing officer
assigned to a family law case with custody issues involving
the child, and provided they are actively participating in the
case, the case file may be inspected by the parties to the
custody dispute, and their attorneys, as well as any minor's
counsel, mediator, or investigator. (Wel. & Inst. Code Sec.
827.)
This bill would provide that when a county child welfare
social worker is investigating whether a child has suffered
AB 939 (Committee on the Judiciary)
Page 7 of ?
abuse or neglect, no inference regarding the credibility of
the allegations of the need for child welfare services may be
drawn from the mere existence of a family law custody dispute.
This bill would provide that a referral from a family court
to child welfare, based on allegations of child abuse, must be
investigated to the same extent as any other allegation of
child abuse.
This bill would provide that the files and records of a child
welfare agency relating to a minor, who is the subject of
either a family law or probate guardianship case involving
custody or visitation issues, may be inspected and copies may
be received by the following persons if such persons are
actively participating in the family law or probate case: (1)
the judge, commissioner, or other hearing officer assigned to
the case; (2) the parent or guardian of the minor; (3) an
attorney for a party to the case; (4) a family court mediator
assigned to the case; (4) a court-appointed investigator,
evaluator or a person conducting a court-connected child
custody evaluation, investigation, or assessment; and (6)
counsel appointed for the minor in the family law case.
This bill would provide that if the child welfare services or
records, or any portion thereof, are privileged or
confidential pursuant to any other state law, except Welfare
and Institutions Code Section 827, or federal law or
regulation, the requirements of that state or federal law
prohibiting or limiting the release of the files or records
shall prevail.
This bill would provide that a social worker may testify in
any family or probate proceeding with regards to information
that may be disclosed under this bill.
This bill would provide that any records or information
obtained pursuant to this bill, including the testimony of a
social worker, shall be maintained solely in the confidential
portion of the family law or probate file.
COMMENT
1.Stated need for the bill
The author states:
As the Elkins Task Force report recently highlighted, family
AB 939 (Committee on the Judiciary)
Page 8 of ?
law cases can have very real, profound and life-long impacts
on spouses, parents and children. It is no exaggeration to
note that other than motor vehicle cases, family law cases
touch more of our constituents' lives most directly and
profoundly than any other. Our family courts decide where
children may live and how they are to be supported; they
divide up homes, businesses and assets; and protect families
and most importantly children. Unfortunately, too often
today, family courts must fight an increasingly overwhelming
battle to try to provide meaningful access to justice to the
hundreds of thousands of families who look to our court system
for protection, most of whom do not have a lawyer. This bill,
which implements some of the most important recommendations
from the Elkins Task Force, seeks to ensure justice, fairness
and due process for all family law litigants and their
children. The important changes proposed by this bill,
including allowing parties to present live testimony in their
cases and to review custody recommendations before they are
presented to the court, and helping family courts to protect
children from harm, will make a significant improvement to the
lives of Californians, and especially California's children.
2.Service of postjudgment motion to modify an order
The following recommendations regarding difficulties with
service of process are designed to encourage clarity and more
effective service of process.
Under existing law no modification of a dissolution or paternity
judgment or permanent order regarding custody, visitation, or
support is valid unless prior notice is served on the parties.
(Fam. Code Sec. 215.) The Elkins Family Task Force (Task Force)
recommended that this section be amended to clarify that service
of postjudgment requests to modify custody, visitation, or child
support can be served on the opposing party by mail, even though
service on the attorney of record may not be sufficient if no
prior postjudgment modification activity has occurred. (Elkins
Report, page 36.) This is intended to encourage and provide for
more effective service of process.
Accordingly, this bill would provide that a postjudgment motion
to modify a custody, visitation, or child support order may be
served on the opposing parties by first-class mail. However, if
the service is by mail, the proof of service must include an
address verification.
3.Preserving the right to present live testimony
AB 939 (Committee on the Judiciary)
Page 9 of ?
In re Marriage of Reifler (1974) 39 Cal.App.3d 479 held that
evidentiary declarations may be used in lieu of live testimony
in a postjudgment modification of support and attorney fees. As
noted in the Task Force final recommendation, Reifler has been
widely interpreted to allow broad judicial discretion about
whether or not to take live testimony at hearings on requests
for orders or to make decisions based solely on the supporting
declarations. Because of crowded calendars, many family courts
have implemented local rules which essentially prohibited the
right to present live testimony at all hearings on an order to
show cause or motion, regardless of the issues involved,
favoring efficiency over the benefits of receiving live
testimony.
As previously discussed, one such local rule that required
parties to present their cases and establish the admissibility
of all the exhibits they sought to introduce at trial by
declaration was reviewed by the Supreme Court in Elkins. The
Court noted that family law proceedings are governed by the same
statutory rules of evidence and procedure that apply in other
civil actions, and courts do not have the authority to adopt
rules that deviate from this law. (Elkins, 41 Cal.4th at 1354.)
A litigant has a right to present evidence at trial and,
although the court can exclude otherwise admissible evidence
because it is unduly time-consuming, prejudicial, confusing, or
misleading, outright denial of the right to present evidence is
error. (Id. at 1362.) The Court emphasized that if trial
courts do not have adequate resources for family law cases, they
should seek additional resources instead of putting efficiency
ahead of fairness. (Id. at 1368.)
The Elkins Family Task Force noted that, according to the
surveys conducted and the response of the members of the public
who presented testimony to the task force, the limitations on
the right to present live testimony, and the resulting exclusive
use of declarations are significant concerns to attorneys and
self-represented litigants alike. Attorneys and litigants who
responded to the surveys made it clear that the ability of
litigants to testify at their hearings on important substantive
issues is critical to their perception of procedural justice in
the family court. Furthermore, reliance on declarations often
has the opposite intended effect and can increase workload for
attorneys and judicial officers. The Task Force, taking into
consideration all of the public input, recommended that parties
should have the right to provide testimony on substantive issues
AB 939 (Committee on the Judiciary)
Page 10 of ?
to the judicial officer at hearings on motions and orders to
show cause unless the judicial officer finds good cause not to
permit live testimony. (Elkins Report, pages 26-29.)
Accordingly, this bill would provide that, absent a finding of
good cause, a family law court shall receive any live, competent
testimony that is relevant and within the scope of the hearing.
This bill would further require the court to state its reasons
on the record if it makes a finding of good cause, and require
the Judicial Council to adopt a statewide rule of court
outlining the factors a court shall consider in making a finding
of good cause by January 1, 2012.
4.Increasing the availability of legal representation
The Judicial Council reports that 90 percent of petitioners in
domestic violence cases are unrepresented, and 85 percent of
petitioners in child support cases appear in court without legal
assistance. Courts report a similar lack of representation in
child custody and dissolution cases, with at least one party
unrepresented in more than 70 percent of family law cases.
Self-represented litigants in family law cases often find
themselves in court dealing with issues that can be legally as
well as factually complex. However, more often than not, family
law litigants do not have the resources to obtain counsel. As
noted by the Task Force, the average family law attorney in
California charges more than $300 per hour and requires a
retainer of approximately $5,000. In this economic climate, few
litigants have the resources to hire and maintain legal
representation for the duration of their family law matter.
Individuals who start out with attorneys at the beginning of
their cases often run out of money and become self-represented
before their cases are over.
Last year, the Legislature enacted, and the Governor signed, the
Sargent Shriver Civil Counsel Act (AB 590 (Feuer, Chapter 457,
Statutes of 2009), which provides funding starting in July 2011
for pilot projects that will provide representation to
low-income parties on critical legal issues affecting basic
human needs. AB 590 allows legal services organizations to
expand representation in the family law arena in domestic
violence and contested child custody cases, among other cases.
While AB 590 is a significant first step in the right direction,
it will only provide a limited amount of funding for family law
proceedings, and most litigants will continue to be
AB 939 (Committee on the Judiciary)
Page 11 of ?
self-represented.
While contested family law matters where both parties are
unrepresented can be extremely difficult for both the parties
and the judge, the cases where one party is represented and the
other is not tend to be the most problematic cases in terms of
fair access to justice. Existing law allows the court to order
early needs-based attorney's fees in cases where parties have
unequal access to resources for an attorney. (Fam. Code Secs.
2030, 3121, 3557.) However, many courts have been reluctant to
rule on attorney's fees until much later in the case,
potentially denying one party effective representation for most
of the proceedings.
In order to address this problem, this bill would follow the
Task Force recommendations and require the court to make
specific determinations when a request for needs-based attorney
fees is made. (Elkins Report, page 58.) Specifically, the
court would be required to determine whether the award of fees
is necessary, whether there is a disparity in access to funds or
income, and whether one party is able to pay for legal
representation for both parties. If the court determines that
there is need, disparity in access and ability to pay, the bill
would require that the court award attorney fees. In addition,
the bill would direct the Judicial Council to standardize the
information that must be submitted to the court in order to
obtain an award of attorney fees. This should help ensure that
parties can expect uniform treatment from courts in all
counties.
5.Judicial officer assignments
In its final report, the Task Force noted that many major trials
and hearings in family court are not heard completely in one or
consecutive court sessions, but instead are broken up into
multiple shorter sessions which may be separated by weeks or
months. The Task Force recognized that this scheduling practice
significantly increases the aggregate time for trials and
hearings and that judicial officers must set aside time to make
and review detailed notes on the proceedings in order to
facilitate their recollection of previous sessions. The Task
Force further stated that while family law cases are best served
by the goal of having the same judge preside throughout the
entire case, as provided for in current law, the benefits of
that practice may be outweighed by the importance of timely
completing a trial or long-cause hearing. (Elkins Report, page
AB 939 (Committee on the Judiciary)
Page 12 of ?
39.)
In order to address these concerns, this bill would provide that
if the assignment of a dissolution action to the same superior
court department for all purposes would result in a significant
delay of the proceeding, the action need not be assigned to the
same department for all purposes, unless the parties stipulate
otherwise. This should provide for more flexibility in court
calendaring for the purpose of facilitating more timely
resolution of cases.
6.Simplifying procedures for summary dissolution
Under existing law, parties to a short-term marriage (five years
or less), with no children from the marriage, no property,
minimal debts ($6,000 or less as of 2009, adjusted per the CPI),
and minimal community property (less than $36,000 as of 2009,
adjusted per the CPI), who have executed an agreement setting
forth a division of their assets and debts, and waived their
right to spousal support and appeal, may seek a summary
dissolution. The court may, upon application of either party,
enter a judgment six months after a joint petition for summary
dissolution is filed.
This bill would, consistent with the recommendations of the Task
Force, implement legislative changes to simplify the summary
dissolution process. (Elkins Report, page 34.) Specifically,
this bill would require the court to enter the dissolution six
months after the joint petition is filed, unless either party
has filed a revocation of the joint petition. The bill also
changes how the length of the marriage is measured. Existing
law requires the marriage to be no more than five years at the
filing of the petition. This bill would instead provide that
the marriage cannot be longer than five years as of the date of
separation. Parties would still be required to exchange
preliminary disclosure declarations, but not final disclosures.
To the extent that families can resolve their differences and
reach agreements on their own, without judicial involvement,
their agreements are more likely to be honored. These changes
should help speed uncontested matters through the system more
easily and save judicial resources for the more difficult,
contested cases.
7.Family-centered case resolution
AB 939 (Committee on the Judiciary)
Page 13 of ?
With the exception of family law, all general civil and criminal
cases have procedures in place that allow the court to control
the process and pacing of the case in order to ensure a fair,
timely, and just resolution. However, family courts have
historically not been granted the normal authority of other
civil courts to control their case scheduling without both
parties' consent, apparently based on an antiquated notion that
appropriately managing family law cases could potentially
prevent parties from reconciling. As a result, one party can
potentially drag out a case for a very long time in the hopes of
forcing the other party to agree to an unfavorable settlement.
In order to modernize and align family court practices with
those of other courts, the Task Force recommends that judges
should, with input of the litigants and their attorneys, have
the ability to control the manner and pace of the litigation by
a method appropriate to each case. (Elkins Report, page 24.)
This may include matters such as establishing discovery
schedules and cut-off dates, and setting dates for exchange of
expert witness information. Accordingly, this bill would
provide that the court may order a family-centered case
resolution plan even in the absence of a stipulation by the
parties.
Importantly, this bill would not create unlimited judicial
authority, and would specifically provide that the authority to
create a family-centered case resolution plan would not increase
the court's ability to appoint outside experts against the
parties' wishes.
8.Redefining the role of minor's counsel
In its final report, the Task Force made a number of
recommendations to address the role of minor's counsel in family
law proceedings. The Task Force found that courts sometimes
appoint minor's counsel in an effort to obtain additional
information on which to base a child custody decision. Key
among its recommendations is that minor's counsel should never
be called on to take the place of a mental health evaluator or
to assume the court's role of weighing and determining the facts
of the case. (Elkins Report, page 54.) Further, the Task Force
recommended that minor's counsel fact gathering should be
presented to the court in the same manner as other admissible
evidence so that parties' due process rights are protected.
As such, this bill would provide that that a court may appoint
AB 939 (Committee on the Judiciary)
Page 14 of ?
minor's counsel, if the court and the counsel comply with the
applicable rules of court. This bill would also require minor's
counsel to present the admissible evidence it gathers that bears
on the best interest of the child to the court in the same
manner as counsel for a party. Minor's counsel would further be
required to serve notices and pleadings on all parties,
consistent with the requirements for parties. If the child so
desires, this bill would require that minor's counsel present
the child's wishes to the court. These changes should ensure
that minor's counsels are acting within their scope and capacity
to advocate for the child's best interests, and that parties
receive notice of the evidence that minor's counsel presents to
the court.
9.Ensuring access to mediator recommendations
For over 25 years, California has required parties in contested
child custody cases to mediate their disputes in an attempt to
facilitate agreement to a parenting plan. Because parties will
have to co-parent up until their children reach the age of
majority, a mutually agreeable outcome is more desirable than
one decided for them by the courts. However, local courts are
split on what that mediation entails. Approximately half of the
local courts rely on confidential mediation, and the other half
utilizes "recommending mediation" where the mediator recommends
a parenting plan to the court if the parties are unable to reach
agreement on their own. Recommending mediators are not required
to provide parties with their recommendations.
The Task Force heard a range of concerns regarding "recommending
mediation." Some litigants apparently experience confusion when
mediators provide recommendations to the court. Other
individuals stated that mediators' recommendations often provide
judicial officers with much needed information that they might
not otherwise receive. Yet others also expressed concerns that
allowing mediators to provide recommendations deprives litigants
of the opportunity to mediate in a confidential setting.
(Elkins Report, pages 45-46.)
To address concerns about procedural fairness and due process,
the Task Force recommended that information provided to the
court from evaluators should be provided in writing to the
parties and their attorneys before a hearing on the matter. This
bill would thus require mediators to provide the parties and
their attorneys with their recommendations, in writing, in
advance of the hearing.
AB 939 (Committee on the Judiciary)
Page 15 of ?
This bill would further require that, in courts where a mediator
submits a recommendation to the court, the mediation and
recommendation process shall be referred to as "custody
negotiation and recommendation," and the mediator shall be
referred to as a "custody recommender." This is intended to
clarify the confusion surrounding the term "mediator" for those
personnel who end up making recommendations to the court when
the parties fail to reach an agreement.
10.Single case resolution for domestic violence and custody
issues
The Elkins Task Force recommends simplifying procedures for
families who enter the family law system with domestic violence
issues, but also need resolution of other family law disputes.
(Elkins Report, page 41.) This bill would accomplish this goal
and implement the recommendations to statutorily authorize
custody and support orders to survive the expiration of a
permanent restraining order. This bill would further allow the
court to accept stipulations to paternity between the parties,
and if the paternity is uncontested, enter a paternity judgment.
These changes would significantly simplify the process for the
vast majority of unrepresented family law litigants who
initially enter the family law system through a petition for a
protective order.
11.Enhancing children's safety
A fundamental responsibility of judges in family law is to
protect the safety and well-being of children. Typically, cases
involving the abuse or neglect of a child are heard in
dependency court. However, family courts often have to deal
with allegations and incidents of domestic violence and abuse in
determining custody cases. When allegations of abuse or neglect
arise in this context, family law cases can start to crossover
into dependency cases. But, as highlighted in the Task Force
report, children in custody cases do not have access to the same
type of services as those in dependency court. For example,
they do not have the benefit of child welfare services, social
workers, Court Appointed Special Advocates (CASA), or the right
to counsel. (Elkins Report, page 56-57.) These services are
not only crucial for children, but also play an important role
in providing courts with the right information and tools to
properly resolve cases involving allegations of abuse or
neglect. Families who seek relief in family court instead of
AB 939 (Committee on the Judiciary)
Page 16 of ?
entering the system through a dependency case can find
themselves without the benefit of these services.
The Task Force makes several recommendations on how to enhance
children's safety in family law cases involving allegations of
child abuse or neglect, which were the subject of an
informational hearing convened by this Committee on April 27,
2010 entitled "Enhancing Children's Safety in Family Court:
Improving Coordination with Child Welfare Services." This bill
would implement some changes consistent with the Task Force
recommendations, although more limited to reduce cost
implications. Specifically, this bill would provide that child
welfare services must appropriately investigate all cases,
regardless of whether there is an existing family law case
involving the same parties or the matter was referred by a
family law judge. Also, in order to ensure that the family
court is able to make informed decisions when allegations of
child abuse arise, this bill would allow judicial officers, the
parties and their attorneys, and specified court-appointed
evaluators or investigators access to the files and records of a
child welfare agency relating to a minor who is the subject of
the custody or visitation proceeding. Because such allegations
can often arise in the context of probate guardianship cases,
this bill would allow the probate court the same access to child
welfare files.
In order to ensure that existing confidentiality provisions are
not undermined, this bill would provide that other provisions of
state or federal law which require information in the child
welfare files or records to be kept confidential shall take
precedence over the provisions of this bill. This bill would
also provide that all records or information obtained by the
family or probate court under these provisions shall be kept in
the confidential portion of the family or probate court file.
Finally, this bill would authorize a social worker to testify in
any family or probate proceeding with regard to the information
disclosed from the child welfare files. While not fully
implementing the Task Force's recommendations on this issue,
these changes would significantly improve the information that
is currently available to family courts and should better equip
judicial officers in their efforts to protect children.
12.Opposition
Opponents of this bill contend, that while this bill generally
would improve access to justice and due process for family court
AB 939 (Committee on the Judiciary)
Page 17 of ?
litigants, the two sections regarding case management would have
the opposite effect. Opponents express concerns that removing
the litigant's ability to stipulate to case management would
create a significant statutory increase in power for court
officers who opponents assert are already powerful. Opponents
also assert that case management would broaden the discretion of
judges by allowing them to order stipulation to court appointees
whenever they see fit. Opponents recognize that other civil
courts have case management and fully support a definition of
case management that is limited to calendaring case events, and
ensuring attorneys meet time frames properly. However,
opponents feel that there are significant differences between
family court and other civil courts which make case management
inappropriate for family court.
Committee staff notes that this bill, as proposed to be amended,
would authorize family-centered case resolution, which would
serve to provide assistance to the parties for the purpose of
expediting resolution of the case, thereby reducing the overall
expense of litigation. This bill specifically provides that
family-centered case resolution would not provide more authority
to appoint experts beyond what is already provided for in
current law.
Support : California Judges Association; City of West Hollywood;
Family Law Section of the State Bar
Opposition : California Protective Parents Association (unless
amended); Center for Judicial Excellence (unless amended); Child
Abuse Solutions (unless amended); Mathis and Associates (unless
amended)
HISTORY
Source : Author
Related Pending Legislation : AB 1050 (Ma) would change the
existing standard governing child testimony and participation in
custody and visitation proceedings. This bill is scheduled to
be heard in this committee on June 29, 2010.
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
AB 939 (Committee on the Judiciary)
Page 18 of ?
**************