BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 458 (Atkins)
As Amended March 29, 2011
Hearing Date: June 7, 2011
Fiscal: Yes
Urgency: No
EDO
SUBJECT
Guardianship
DESCRIPTION
This bill would establish venue rules for guardianship cases
when a guardianship proceeding is filed in one county and a
custody or visitation proceeding has already been filed in one
or more other counties. This bill would create a presumption
that venue is proper in the county where the guardianship
petition is filed if the proposed guardian and child have
resided in that county for at least six months prior to the
commencement of the guardianship proceeding. This bill would
allow the courts to exercise discretion if it is in the best
interest of the child to retain jurisdiction in the county where
the initial custody or visitation proceeding was filed.
BACKGROUND
The California Supreme Court in Greene v. Superior Court (1951)
37 Cal.2d 307 held that proper venue for a guardianship
proceeding is maintained in the first court where a child
custody order was determined, rather than the county where the
guardianship proceeding was filed and where the proposed ward
and guardian reside.
In August 2010, the Policy Coordination and Liaison Committee
(PCLC), Probate and Mental Health Advisory Committee, and the
Family and Juvenile Law Advisory Committee of the Judicial
Council of California circulated for review proposed legislation
for determining venue in guardianship proceedings. This bill
would implement that proposal.
(more)
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Specifically, this bill, sponsored by Judicial Council of
California, would create a presumption that if a proposed ward
and proposed guardian reside in the county where the
guardianship proceeding is filed for at least six months prior
to the petition being filed, venue is proper in that county.
This bill would create a reverse presumption that if the
proposed ward and guardian have not resided in the county where
the guardianship proceeding was filed, then proper venue is in
the county where the original child custody or visitation
judgment was ordered. Both of these provisions allow the court
discretion to determine which venue would be in the best
interests of the child. This bill would also require courts to
communicate with one another when there is concurrent
jurisdiction, as specified.
CHANGES TO EXISTING LAW
1.Existing law provides that a relative or other person on
behalf of the minor, or the minor if 12 years of age or older,
may file a petition for the appointment of a guardian of the
minor. (Prob. Code Sec. 1510.)
Existing law provides that if it appears necessary, upon
hearing of the petition, the court may appoint a guardian of
the person or estate of the proposed ward or both. (Prob.
Code Sec. 1514.)
Existing law provides that the court may, in the court's
discretion, appoint two or more joint guardians of the person.
(Prob. Code Sec. 2105.)
This bill would prohibit a minor's parent, except in specified
circumstances, from being appointed as a guardian of the
minor.
2.Existing law provides that the proper county for the
commencement of a guardianship proceeding is either of the
following: (a) the county in which the proposed ward resides;
or (b) any other county which would be in the best interests
of the proposed ward. (Prob. Code Sec. 2201.)
Existing law provides that if proceedings for the guardianship
of the person are commenced in more than one county, the
guardianship of the person first granted, governs and the
other proceeding shall be dismissed. (Prob. Code Sec. 2203
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(a).)
Existing law provides that a guardianship or conservatorship
proceeding may be transferred to another county upon petition
to the court. (Prob. Code Sec. 2211.)
Existing law provides that if the court determines that the
transfer of the guardianship proceeding requested in the
petition will be in the best interests of the child it must
make an order transferring the proceeding to the other county.
(Prob. Code Sec. 2215 (b)(1).)
Existing law provides that venue is proper to enforce an
obligation of child support in the county where the child
resides. Existing law provides that venue is proper in a
proceeding to establish and enforce a foreign judgment or
court order for the support of a minor child in the county
where the child resides. (Code of Civ. Proc. Sec. 395.)
Existing law provides that under the Uniform Parentage Act
proper venue exists in the county in which the child resides
or is found, or in other specified circumstances. (Fam. Code
Sec. 7620.)
Existing case law provides that where two courts exercise
concurrent jurisdiction, the first court to issue a custody
order assumes exclusive jurisdiction. (Greene v. Superior
Court (1951) 37 Cal.2d 307, 310.)
This bill would, in cases where a guardianship proceeding is
filed in one county and a custody or visitation proceeding has
already been filed in one or more other counties, do the
following:
create a presumption that if a proceeding for
guardianship is filed in the county where the proposed ward
and proposed guardian has resided for at least six months
prior to the commencement of the proceeding the court in
that county is the proper venue.
create an opposite presumption if the proposed ward and
proposed guardian have resided in the county for less than
six months, and would require the court to transfer the
guardianship proceeding to the first court having
jurisdiction.
allow the court to exercise discretion in either case if
the court determines it is in the best interest of the
minor.
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This bill would require a court where the guardianship
proceeding is commenced to communicate with each court
concerning the proceedings prior to making a determination
whether or not to transfer the proceeding.
This bill would also authorize the court to communicate with
each court when a petition to transfer is filed where a
custody or visitation proceeding is on file before determining
whether or not to transfer the petition.
This bill would require the court to transmit a copy of the
order appointing a guardian to each court where a custody or
visitation proceeding is on file.
This bill would require the Judicial Council to adopt rules of
court by January 1, 2013 to implement the provisions of this
bill.
This bill would also authorize the court that appointed the
guardian to have exclusive jurisdiction over all custody or
visitation matters involving the minor until the guardianship
proceeding is terminated.
COMMENT
1. Stated need for the bill
The sponsor, Judicial Council of California, writes:
�This bill] creates presumptions for determining venue based
on the length of the residence of the proposed ward and
proposed guardian in the county where the guardianship action
was filed, but preserves the court's ability to make the
ultimate determination based on the best interests of the
minor. The bill also establishes a consultative procedure
between courts to assist in determining the appropriate venue
of a probate guardianship when one or more custody proceedings
under the Family Code involving the proposed ward are on file
in one or more other counties. In addition, �this bill]
discourages forum shopping of the kind condemned in the Greene
case by a parent of a child disappointed in the outcome of
previous child custody litigation by preventing the parent
from seeking appointment in most situations as the guardian of
the child's person. The bill further codifies case law
establishing exclusive jurisdiction in the guardianship court
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to determine custody or visitation concerning the ward during
the duration of the guardians' appointment. Finally, language
was added to �this bill] to make clear that it does not impact
the provisions in current law providing for the consolidation
of probate guardianship and adoption proceedings.
In support of this bill, the National Center for Youth Law
writes, "current guardianship venue statutes do not provide for
the situation in which a petition for appointment of a guardian
of the person of a minor is filed after one or more custody
proceedings under the Family Code involving that minor are on
file in different counties. �This bill] offers clarity to the
law under these particular circumstances by creating
presumptions based on the county of residency of the minor and
proposed guardian. �This bill] discourages forum shopping by
child custody litigants and preserves the appointing court's
exclusive jurisdiction over custody and visitation of the minor
while the guardianship remains in effect."
Also in support of this bill, the Trusts and Estates Section of
the California State Bar writes, "this legislation would clarify
that where a family custody or visitation proceeding involving
the proposed ward was first filed in one or more counties, and a
guardianship was subsequently filed in another county, various
presumptions for determining venue would be created based upon
length of residence and best interests of the ward. The two
courts are required to communicate with each other before making
a determination as to proper venue. Finally, a mechanism is
created where a party in a family custody or visitation
proceeding could petition for transfer of the guardianship
proceeding to a court where the custody or visitation proceeding
is filed before the guardian is appointed. This venue mechanism
better suits the mobile requirements of our modern families."
2. Creates a presumption that venue is proper in a guardianship
proceeding in the county where the proposed ward and proposed
guardian reside
In 1951, the California Supreme Court held that the proper venue
for a guardianship proceeding is in the first county where an
initial custody or visitation judgment was ordered, even when
the proposed guardian and proposed ward reside in the county
where the guardianship proceeding has been filed. (Greene v.
Superior Court (1951) 37 Cal.2d 307.) The court relied on the
general presumption that when two courts have concurrent
jurisdiction, the first court retains jurisdiction over the
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matter. The court reasoned that this holding was necessary in
order to ensure that conflicting child custody holdings do not
occur. (Id. at 310-11.) The court held that this was
appropriate, "otherwise a parent having the immediate control of
a minor might move from county to county, instituting
guardianship proceedings, in search of a court that will alter
the custody provisions of a divorce decree." (Id. at 311.)
The dissenting opinion reasoned that the majority was relying on
a 'fundamental fallacy' by treating a divorce decree awarding a
parent custody of a child as the same as the appointment of a
guardian. The dissenter reasoned that in a divorce proceeding
involving custody of a child, only the parents appear as
parties. Whereas in a guardianship proceeding, any interested
person may appear and if the child is 12 years of age or older,
he or she may institute a guardianship proceeding on their own.
According to the sponsor, Judicial Council, this bill would
"partially abrogate the California Supreme Court's decision in
Greene" by creating a presumption that if a proposed ward and
guardian have resided in the county where the guardianship
proceeding is filed for at least six months prior to the
commencement of the proceeding, venue is proper in that
jurisdiction, rather than finding, as the court did in Greene,
that the first court having concurrent jurisdiction is the
proper venue. This bill creates a reverse presumption if the
proposed ward and guardian have not resided in the county for at
least six months. In either case, the court maintains the
discretion to decide which court is the proper venue based on
the best interests of the minor. This bill would also appear to
address the Greene court's concern regarding potential forum
shopping by specifically prohibiting a parent from being
appointed as the minor's guardian in cases where a parent may be
unhappy with a child custody or visitation order.
3. Requires courts to communicate with each other when there is
concurrent jurisdiction
The California Supreme Court in Greene held that "the rule
making exclusive the jurisdiction first acquired is particularly
apposite to prevent unseemly conflict between courts that might
arise if they were free to make contradictory custody awards at
the same time." (Id. at 311.) This bill addresses these
concerns raised by the court in Greene regarding conflicting
child custody proceedings by requiring that in order to ensure
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that the proper determination is made regarding venue in
guardianship proceedings, both courts must communicate with each
other before deciding on venue. Also, as discussed above, this
provision should also help prevent a parent from engaging in
forum shopping by moving to another county when they are
displeased with the result of a child custody ruling in one
county. By requiring courts to communicate this bill ensures
adequate protections as well as assists the court in determining
what is in the best interest of the child.
4. Authorize exclusive jurisdiction over child custody and
visitation with the court granting guardianship
The court in Greene affirmed the principle that when a court has
appointed a guardian of a child, no other court has jurisdiction
over the custody or visitation of the child for the duration of
the guardianship. This bill would codify that principle and
grant exclusive jurisdiction to the court where the guardianship
proceeding is determined. This will help ensure that no other
court interferes with the custody or visitation of a child.
Support : National Center for Youth Law; Trusts and Estates
Section of the California State Bar
Opposition : None Known
HISTORY
Source : Judicial Council of California
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 60, Noes 0)
Assembly Committee on Appropriations (Ayes 16, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
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