BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
939 (Feuer)
Hearing Date: 08/09/2010 Amended: 08/03/2010
Consultant: Jacqueline Wong-HernandezPolicy Vote: Judiciary 4-0
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BILL SUMMARY: AB 939 would make numerous changes to family law
proceedings; in part, to implement many recommendations of the
Elkins Family Law Task Force.
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Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
New Rules of Court Minor and absorbable,
one-time workload General*
*Trial Courts Trust Fund
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STAFF COMMENTS:
AB 939 changes various Rules of Court and court policies, with
regard to family court proceedings. The Judicial Council would
be responsible for developing corresponding Rules of Court, and
updating court materials and policies, as specified. The
Judicial Council has indicated that the bill's delayed
implementation (to January 1, 2012) will give the Council
sufficient time to incorporate these changes into its existing
workload. The actual substance of the changes will impact
individual court proceedings, but are unlikely to incur any
additional direct cost to the state.
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. This bill would provide that
a post-judgment 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.
Conforming to existing case law, 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 also
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.
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AB 939 (Feuer)
Under existing law, the court is required, 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.
AB 939 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 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.
Existing law allows for dissolution of a short-term marriage by
summary proceedings if specified conditions are satisfied. The
proceeding is commenced by the filing of a joint petition, and
the court can, upon application of either party, to enter a
judgment of dissolution six months after filing of the joint
petition for summary dissolution. This bill would require the
court to automatically 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 petition. This
provision will likely result in court administrative workload
savings, by not having to retain files until the petitioners
take a subsequent action.
Existing law authorizes case management in dissolution
proceedings on stipulation of the parties. This bill would allow
the court, in a dissolution proceeding, to order a family-
centered case resolution plan, without stipulation. 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. This provision
recasts existing authority, and is unlikely to result in any
expansion of judicial discretion.
AB 939 would provide that in a family court proceeding, a court
may appoint minor's counsel, if appropriate, if the court and
the counsel comply with specified rules of court. This bill
would also 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.
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 further 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.
This bill would provide that when a county child welfare social
worker is investigating whether a child has suffered abuse or
neglect, no inference regarding the credibility of the
allegations of the need for child welfare services may be drawn
from the mere
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AB 939 (Feuer)
existence of a family law custody dispute. This bill would
provide that a referral from a family court (which occurs under
existing law), based on allegations of child abuse, must be
investigated to the same extent as any other child abuse
allegation.
The bill would also provide an exception to the confidentiality
of child welfare agency records for certain specified
participants in family law and probate guardianship cases by
authorizing the child welfare agency to permit inspection of,
and to provide copies of, its records. This bill would provide,
however, 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. These provisions are permissive,
and do not constitute a reimbursable state mandate on counties.
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. Any records or information
obtained pursuant to this bill, including the testimony of a
social worker, is required to be maintained solely in the
confidential portion of the family law or probate file.