BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1477 (Anderson)
As Amended April 18, 2012
Hearing Date: May 8, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Confidential Records
DESCRIPTION
This bill would provide that when specified evidence
demonstrating a history of domestic violence against a minor is
included in a petition for a confidential name change for the
minor, the noncustodial parent need not be notified of the
hearing on the petition for the name change.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
Victims of domestic violence often must seek assistance and
protection from their abuser. Under existing law, a victim may
notify law enforcement, file with the court for a restraining
order, or enroll in a program or shelter for victims of abuse.
Victims with children should seek the assistance of the family
or dependency court in order to seek appropriate custody and
support orders. In cases of domestic violence, a court may
grant full legal and physical custody to the victim parent. In
certain cases, an abusive parent may have his or her parental
rights terminated entirely.
The Safe at Home program (SAH) within the Office of the
Secretary of State allows victims of domestic violence,
stalking, and sexual assault to apply for a substitute address
to be used in public records in order to prevent their
assailants from finding their work or home address. The
(more)
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Secretary of State also acts as the program participants' agent
for service of process and forwards mail received at the
substitute address provided. Upon successful application, a
program participant is certified to remain in the program for
four years, as specified. For victims not yet of the age of
majority, a parent or guardian may apply to enroll the victim
into the program.
Some victims of domestic violence elect to file for a
confidential name change with the state. A parent petitioning
for a name change for their child is required to notify the
child's other parent of the name change, unless the other
parent's rights have been terminated. The Secretary of State
warns that, "because the confidential name change is used to
establish a new identity, a person's ability to receive credit;
purchase, rent or inherit property; obtain a passport; start a
business; or apply for school programs or grants may be delayed.
Participants are advised to seek the assistance of an attorney,
legal advisor or to consult with their local Legal Aid
Foundation prior to initiating the process to find out how their
lives may be affected." (California Secretary of State, Courts
accessed May 3, 2012.)
This bill would eliminate the requirement that a noncustodial
parent be served notice when a custodial parent petitions for a
confidential name change of a child if the custodial parent
provides specified evidence demonstrating domestic violence
against the child.
CHANGES TO EXISTING LAW
Existing law provides that all applications for change of names
be filed in the superior court and signed by the person whose
name is to be changed. (Code Civ. Proc. Sec. 1276(a).)
Existing law provides that all applications for change of names
for a person under 18 years of age is signed by one or both of
the person's parents, or by any guardian of the person. (Code
Civ. Proc. Sec. 1276(a).)
Existing law provides that petitions to change the name of a
person under 18 which are not signed by one or both parents,
shall name, as far as known to the person proposing the name
change, the parent(s) of the person and their place of
residence. (Code Civ. Proc. Sec. 1276(b)-(c).)
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Existing law provides that when a petition for a name change is
filed, the court must direct all person interested in the matter
to appear before the court at a time and place specified. The
order shall direct all persons interested in the matter to make
known any objection that they may have to the name change in
writing at least two days prior to the day the matter is to be
heard, and appear in court to show good cause for why the
petition for change of name should not be granted. (Code Civ.
Proc. Sec. 1277(a).)
Existing law provides that a copy of the order to show cause
shall be published in a newspaper of general circulation. (Code
Civ. Proc. Sec. 1277(a).)
Existing law provides that if a parent does not consent to the
name change of a minor child, that parent must be served notice
30 days prior to the hearing, of the time and place of the
hearing, and a copy of the order to show cause. (Code Civ. Proc.
Sec. 1277(a).)
Existing law provides that if a petitioner is a participant in
the address confidentiality program (Safe at Home) and petition
for a change of name alleges the name change is to avoid
domestic violence, stalking, or that the petitioner is (or is
filing on behalf) of a victim of sexual assault, the action is
exempt from the requirement for publication and the court orders
will show, in lieu of the proposed name, that the name change
was confidential. (Code Civ. Proc. Sec. 1277(b).)
Existing law establishes an address confidentiality (or Safe at
Home) program within the Office of the Secretary of State in
order to enable state and local agencies to both accept and
respond to requests for public records without disclosing the
changed name or address of a victim of domestic violence, sexual
assault, or stalking. Existing law permits any such adult
victim, or parent or guardian acting on behalf of a minor or
incapacitated person, to apply through a community-based
victims' assistance program to have an address designated by the
Secretary of State as his or her substitute mailing address.
(Gov. Code Sec. 6205 et seq.)
This bill would permit a court to waive the requirements for
publication and notice to the noncustodial parent of a
confidential name change of a minor, if required to protect the
safety of the child and the petitioner shows all of the
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following:
the child and the petitioner are participants in the address
confidentiality program Safe at Home;
the petitioner has a final order awarding the petitioner sole
legal and physical custody of the child;
the child is protected by an order issued after that prevents
the non-petitioning parent from having any contact with the
child, and that was issued with a duration of at least five
years; and
the non-petitioning parent is not subject to an order to pay
child support for the minor whose name is proposed to be
changed.
COMMENT
1.Stated need for the bill
The author writes:
Since the name change process requires notification of the
non-consenting parent, the required notification process
could compromise the safety of the minor or parent if the
noncustodial parent has a history of domestic violence. ? As
a protective measure, SB 1477 eliminates the notification of
the non-custodial parent if there is . . . evidence that a
sufficient threat is posed by the non-custodial parent.
2.Evidentiary standard under this bill raises due process
concerns for the noncustodial parent
This bill would allow a parent to petition for a minor's name
change without notifying the noncustodial parent if the
petitioner provides specified evidence demonstrating domestic
violence against the child.
If a parent and child's names are changed confidentially, the
non-consenting parent may lose access to his or her child
indefinitely. Practically speaking, a confidential name changes
may result in a termination of parental rights. The right to
familial association is fundamental. In Santosky v. Kramer, the
U.S. Supreme Court said, "Even when blood relationships are
strained, parents retain vital interest in preventing
irretrievable destruction of their family life; if anything,
persons faced with forced dissolution of their parental rights
have more critical need for procedural protections than do those
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resisting state intervention into ongoing family affairs." (455
U.S. 745, 753. (1982).)
Depriving a person of a fundamental right without notice or
hearing runs counter to our system of justice. Accordingly, in
order for a person's right to familial association to be
impaired, the justification must be compelling and the
impairment must be narrowly tailored. The state has a
compelling interest in protecting individuals, especially
children, from domestic violence. Because many protections and
services are currently available to victims of domestic violence
(see Comment 3), the circumstances which would justify a
confidential name change of a minor without notice to the
noncustodial parent must be extraordinary; allegations of
domestic violence are clearly not enough. Additionally, a state
can never deprive a person of a fundamental right without prior
notice of the allegations against him and a chance to be heard.
In order for the court to know that there is a threat sufficient
to justify the change of the name of a minor without notice to
the other parent, the court should rely on a record from
proceedings where the noncustodial parent was properly noticed
and heard. From that record, the court may make the
determination if there is a sufficient threat to justify a
minor's confidential name change. The following amendments
would ensure than an adequate record was available to a court
when determining whether notice is required for a non-consenting
parent.
Suggested amendments:
Page 4, strike lines 1 - 10, inclusive
Page 5, line 18, after "parent." insert:
A court may waive the requirements for publication and
notice under this section if required to protect the best
interests of the child and the petitioner shows:
1) the child and the petitioner are participants
in the address confidentiality program created
pursuant to Chapter 3.1 (commencing with Section 6205)
of Division 7 of Title 1 of the Government Code;
2) the petitioner has a final order awarding the
petitioner sole legal and physical custody of the
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child;
3) the child is protected by an order issued
after hearing pursuant to the Domestic Violence
Prevention Act, Division 10 of the Family Code
beginning with section 6200, that prevents the
non-petitioning parent from having any contact with
the child, and that was issued with a duration of at
least five years; and
4) the non-petitioning parent is not subject to
an order to pay child support for the minor whose name
is proposed to be changed.
Page 5, strike lines 38 and 39
Page 6, strike lines 1 and 2
1.Protection for victims of domestic violence exists under
current law
This bill would allow a party to file for a confidential name
change for a minor child without notifying the noncustodial
parent, without first utilizing less drastic existing solutions.
Victims of domestic violence have a number of protections and
options under the law. Law enforcement, courts, and private
companies offer protection, programs and aid. Confidential name
changes come with a host of problems. Individuals lose their
social security numbers, their credit history and drivers'
licenses. Children may lose the ability to receive support or
collect inheritance. In addition to due process concerns (see
above), confidential name changes may undermine a child's public
record and identity. As such, they should be used as a last
resort.
When a victim of domestic violence requires immediate
intervention to prevent violence within the household, he or she
may file an ex parte order to have the alleged abuser enjoined
from any contact with the client. Ex parte orders are typically
used in emergency situations where the court needs to act
quickly. Because they require pleadings from only one party,
they can be heard quickly and are temporary in nature. Victims
of domestic violence receive a variety of free legal services,
including waiver of filing fees and service of process.
Interpreters are also provided at no cost in a domestic violence
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action. (Fam. Code Sec. 6222.)
If there is domestic violence in a home where police
authorities, a parent, or others have contacted the local child
protective services agency, that agency may advise a parent that
unless the parent seeks a civil domestic restraining order that
removes the abuser from the family home, the agency will file a
dependency petition. If the alleged abuser has subjected a
child to severe abuse or risk of abuse, a parent may begin the
process of terminating the abuser's parental rights. If a
parent's rights cannot be terminated, victims may file for
supervised visitation, or sole legal and physical custody of the
child.
The Safe at Home program (see Background) provides a free post
office box and mail forwarding service for victims and survivors
of domestic violence, stalking or sexual assault. This program
allows victims to use a free P.O. Box instead of their home
address which helps them maintain their privacy when receiving
first-class mail, participating in court proceedings, opening a
bank account, completing a confidential name change, filling out
government documents, registering to vote, getting a driver's
license, or enrolling a child in school.
Support : Junior League of San Diego; California Coalition
Against Sexual Assault; Crime Victims Alliance; Crime Victims
United of California; one individual
Opposition : None Known
HISTORY
Source : An Individual
Related Pending Legislation : None Known
Prior Legislation : None Known
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