BILL ANALYSIS
AB 939
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 939 (Judiciary Committee)
As Amended August 16, 2010
Majority vote
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|ASSEMBLY: |71-0 |(January 19, |SENATE: |32-0 |(August 20, |
| | |2010) | | |2010) |
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Original Committee Reference: JUD.
SUMMARY : Revises family law procedures. Specifically, this
bill :
1)Clarifies 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. Requires the
court to state its reasons on the record if it makes a finding
of good cause.
2)Allows, effective January 1, 2012, a court in a dissolution
proceeding to order a family centered case resolution plan,
even in the absence of a stipulation by the parties.
Clarifies that family centered case resolution does not
provide the court with any additional authority to appoint an
expert, beyond that permitted under other provisions of law.
Directs Judicial Council, by January 1, 2012, to adopt a rule
of court to implement family centered case resolution.
3)Allows child custody mediators, consistent with local rules,
to submit custody recommendations to the court, provided the
mediator has provided the parties and their attorneys,
including minor's counsel, with the recommendations, in
writing, in advance of the hearing. Provides that if
mediators are authorized to submit recommendations to the
court, the mediators are to be called "child custody
recommending counselors" and the process is to be called
"child custody recommending counseling." Provides that, on
and after January 1, 2012, all court communications and
information must reflect the name changes.
4)Requires the court, in any dissolution, child support or
exclusive custody proceeding where one party has requested
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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, requires the court
to award attorney's fees and costs.
5)Allows the court, if allegations of child abuse are made
during a child custody proceeding, to take any reasonable
steps to protect the child, including making a referral to the
local child welfare services agency.
6)Provides that a court may appoint minor's counsel, if
appropriate, if the court and the counsel comply with
specified rules of court. Requires that minor's counsel
present the child's wishes to the court if the child so
desires. Requires counsel to serve notices and pleadings on
all parties, consistent with requirement for parties.
7)Allows a postjudgment motion to modify a custody, visitation
or child support order to be served on the opposing parties by
first-class mail, provided the proof of service includes
address verification.
8)Allows a court, in a dissolution action, not to assign the
same superior court department to hear all aspects of the case
if that assignment will result in significant delay, unless
the parties stipulate otherwise.
9)Allows a 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.
10) Provides that any custody, visitation and support orders
issued as part of a domestic violence protective order issued
after a noticed hearing survive termination of that protective
order.
11) Provides that when a county child welfare social worker is
investigating whether a child has suffer 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. Provides that a
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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.
12) Provides an exception to the confidentiality of child
welfare agency records for certain participants in family law
and probate guardianship cases by authorizing the child
welfare agency to permit inspection, and to provide copies, of
its records, as specified. Requires that any information
obtained from the child welfare files or records be maintained
solely in the confidential portion of the family law file.
13) Requires the court to enter a judgment of dissolution six
months after the joint petition is filed unless either party
has filed a revocation of the joint petition. Changes how the
length of the marriage is measured by specifying the marriage
to be no more than five years as of the date of separation
rather than as of the filing of the petition.
The Senate amendments add the changes set forth in #1-12, above.
EXISTING LAW :
1)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.
2)Provides 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 - that except as otherwise
provided by statute or rule, the rules of practice and
procedure applicable to civil actions generally apply to, and
constitute the rules of practice and procedure in, proceedings
under the Family Code.
3)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.
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4)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 are made by the same
judicial officer.
5)Allows for case management in dissolution proceedings, on
stipulation of the parties. Requires case management in civil
cases.
6)Allows the court, if allegations of child sexual abuse are
made during a child custody proceeding, to take any reasonable
steps to protect the child, including making a referral to the
local child welfare services agency.
7)Allows a court, in a custody or visitation proceeding, to
appoint minor's counsel if such appointment is in the best
interests of the child. Allows minor's counsel to present the
court with facts, including the child's wishes when counsel
deems it appropriate. Requires minor's counsel, at the
court's request, to prepare a written statement of the issues
and contentions for the court.
8)Allows child custody mediators, consistent with local rules,
to submit custody recommendations to the court.
9)Allows the court, when issuing a domestic violence protective
order, to issue custody and visitation orders and, if certain
conditions are met, to establish a parent-child relationship.
10) When 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,
requires the social worker to make an immediate investigation,
as provided.
11) Allows a child's juvenile court case files to be inspect
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.
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12) 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. Requires that the
proceeding be commenced by the filing of a joint petition.
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.
AS PASSED BY THE ASSEMBLY , this bill made improvements to the
summary dissolution process, set forth in #13 of the bill
summary.
FISCAL EFFECT : According to the Senate Appropriations, for new
Rules of Court, minor and absorbable, one-time workload costs.
COMMENTS : The impact of family law cases on children and
families cannot be underestimated. These cases involve such
important issues as with whom a child will reside, the safety of
the parties, child and spousal support, and the division of a
family's assets and debts. The decisions in these cases can
affect families for a lifetime. Yet all too often, family law
litigants - the vast majority of whom are unrepresented by
counsel - have significant difficulty navigating through the
court process; and that difficulty affects case outcomes. In
recognition of both the importance of family law cases and the
need to increase access to justice, ensure due process and
provide for more effective and consistent policies in family
law, the Judicial Council established the Elkins Family Law Task
Force to conduct a comprehensive review of family law
proceedings and develop recommendations to improve the process.
This bill seeks to implement the key recommendations of that
Task Force.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0006205