BILL ANALYSIS �
SB 1477
Page 1
Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1477 (Anderson) - As Amended: June 26, 2012
As Proposed to Be Amended
SENATE VOTE : 39-0
SUBJECT : CONFIDENTIAL NAME CHANGE: MINOR CHILD
KEY ISSUES :
1)PROVIDED CERTAIN CONDITIONS ARE MET, SHOULD A PARENT BE
PERMITTED TO CHANGE HIS OR HER CHILD'S NAME WITHOUT PROVIDING
THE OTHER PARENT WITH NOTICE AND AN OPPORTUNITY TO BE HEARD AT
THE NAME CHANGE COURT PROCEEDING OR, EVEN MORE FUNDAMENTALLY,
WITHOUT INFORMING THE OTHER PARENT OF THE CHILD'S CHANGED
NAME?
2)IN ORDER TO PREVENT a PARENT FROM EFFECTIVELY LOSING
CONSTITUTIONALLY PROTECTED RIGHTS AT A HEARING OF WHICH HE OR
SHE HAD NO NOTICE AND NO OPPORTUNITY TO BE HEARD, SHOULD THIS
BILL BE AMENDED TO REQUIRE THAT, AT THE VERY LEAST, a PARENT
BE INFORMED OF HIS OR HER CHILD'S CHANGED NAME?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
As proposed to be amended, this bill permits a parent, when
specified conditions are satisfied, to change a child's name
without informing the other parent of the hearing to change the
child's name or even of the changed name itself. The specified
conditions include a court finding that the action is necessary
to protect the best interests of the child, the petitioning
parent has sole legal and physical custody of the child, and the
petitioning parent and the child are participants in the
Secretary of State's Safe at Home address confidentiality
program. The bill sunsets in three years and requires the
Judicial Council to study the effect of the lack of notice and
report its findings to the Legislature.
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Parents have a fundamental liberty interest in the care, custody
and control of their children. Recognizing the importance of
the parent-child relationship and a parent's fundamental liberty
interest in that relationship, parental rights may only be
terminated through a lengthy court process that, among other
things, requires notice and an opportunity to be heard,
appointment of counsel for the parent and child, thorough
investigations, and findings by clear and convincing evidence,
and, if rights are terminated, the right to appeal. By allowing
a parent, with court approval, to unilaterally change a child's
name without notice to the other parent and without even telling
the other parent the child's changed name, this bill
inadvertently but still effectively could terminate a parent's
rights to his or her child. Thus, this analysis suggests that,
at the very least, this Committee consider an amendment to
require that the parent who has successfully petitioned for a
child's name change be required to notify the other parent of
the changed name. While still not providing the parent with
notice and an opportunity to object, this change will still help
ensure that the parent-child relationship is not effectively
severed for life.
This bill is supported by various victims' rights organizations,
as well as the Junior League. While supporting the bill, these
groups raise concerns about the unintended consequences that can
flow from a name change.
SUMMARY : Permits a court to waive notice and publication
requirements for a child's name change if specified conditions
are met. Specifically, this bill :
1)Allows a court, until January 1, 2016, to waive the
requirements for publication and notice to the non-petitioning
parent of a petition to change a child's name if the court
finds in writing or on the record that such waiver is
necessary to protect the best interests of the child and the
petitioner shows all of the following:
a) The petitioner and the child are participants in the
Safe at Home address confidentiality program;
b) There is a final order awarding the petitioner sole
legal and physical custody of the child, which does not
permit visitation by the non-petitioning parent;
c) The child is protected by an order issued after hearing
that prevents the non-petitioning parent from having any
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contact with the child until the child is at least 18 years
of age; and
d) The non-petitioning parent is not subject to an order to
pay child support for that child.
2)Requires the Judicial Council to study the effect of the
waiver in # 1) and reports its findings to the Legislature on
or before April 1, 2015. Requires courts who grant such
waivers to provide a copy of the name change order to the
Judicial Council to aid in preparation of the report.
3)Requires the court to permit a child who is 14 years of age or
older to address the court regarding the child's proposed name
change, unless the court determines that doing so is not in
the child's best interests, and in that case, requires the
court to state its reasons for that finding on the record.
Provides that this shall not be interpreted to prevent a child
who is less than 14 years old from addressing the court
regarding the name change, if the court determines that is
appropriate pursuant to the child's best interests.
EXISTING LAW :
1)Provides that all applications for change of name be filed in
the superior court and signed by the person whose name is to
be changed. Provides that all applications for change of name
for a person under 18 years of age be signed by one or both of
the child's parents, or by any guardian of the person. (Code
of Civil Procedure Section 1276(a). Unless stated otherwise,
all further statutory references are to that code.)
2)Provides that when a petition for a name change is filed, the
court must direct all persons interested in the matter to
appear before the court at a time and place specified.
Requires the order to 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
why the petition for change of name should not be granted.
(Section 1277(a).)
3)Provides that a copy of the order to show cause shall be
published in a newspaper of general circulation. (Id.)
4)Provides that if a parent does not consent to the name change
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of his or her 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. (Id.)
5)Provides that a petitioner, who is a participant in the Safe
at Home address confidentiality program and petitions for a
change of name alleging the name change is to avoid domestic
violence, stalking, or that the petitioner is a victim of
sexual assault, the action is exempt from the requirement for
publication and requires any such court order show that the
name change was confidential. (Section 1277(b).)
6)Provides that a child may, in specified circumstances,
including where a parent has abandoned a child, has neglected
or cruelly treated the child, or been convicted of a felony,
be declared free from the custody and control of either or
both parents. Requires that before that can occur, the parent
and the child be provided with counsel and an investigation be
performed. Requires that any finding under these provisions
be supported by clear and convincing evidence. (Family Code
Section 7800 et seq.)
7)Prohibits, under the U.S. Constitution, any state or local
government from depriving any person of life, liberty, or
property without due process of the law. (U.S. Const., 14th
Amendment, Section 1.) Recognizes that the due process clause
protects "a realm of personal liberty which the government may
not enter," including the right of parents to direct the
upbringing of their children. (Planned Parenthood v. Casey
(1992) 505 U.S. 833, 847.) Holds that "the interest of
parents in the care, custody, and control of their children -
is perhaps the oldest of the fundamental liberty interests."
(Troxel v. Granville (2000) 530 U.S. 57, 65.)
8)Establishes the Safe at Home address confidentiality program
within the Office of the Secretary of State (SOS) 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. 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 SOS as his/her substitute mailing address. (Government
Code Section 6205 et seq.)
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9)Requires the court to permit a child who is 14 years of age or
older to address the court regarding custody or visitation
unless the court determines that doing so is not in the
child's best interests, and in that case, requires the court
to state its reasons for that finding on the record. Provides
that this shall not be interpreted to prevent a child who is
less than 14 years old from addressing the court regarding
custody or visitation, if the court determines that is
appropriate pursuant to the child's best interests. (Family
Code Section 3042.)
COMMENTS : As proposed to be amended, this bill permits a
parent, when specified conditions are satisfied, to change a
child's name without informing the other parent of the hearing
to change the child's name or even of the changed name. Those
specified conditions include a court finding that the action is
necessary to protect the best interests of the child, the
petitioning parent has sole legal and physical custody of the
child, the petitioning parent and the child are participants in
the Secretary of State's Safe at Home address confidentiality
program, and the non-petitioning parent is prevented from
contacting the child until the child is at least 18 years of
age. The bill sunsets in three years, and requires the Judicial
Council to study the effect of the lack of notice and report its
findings to the Legislature.
Bill's Supporters Voice Concerns About Problems Associated With
a Name Change : 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, confidential name changes may undermine
a child's public record and identity.
In fact, supporters of the bill write of their concerns with
name changes: "Moreover, name changes can produce unintended
consequences, such as travel restrictions, restrictions to
financial services such as bank loans, in addition to negative
efforts on credit scores. In many cases, these unintended
consequences outweigh the benefits and security provided by a
name change." Thus, it is clear that a name change has some
very negative consequences and should not be embarked upon
without good reason.
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Parents Have Fundamental Rights to Direct the Upbringing of
Their Children . The 14th Amendment prohibits state and local
government from "depriving any person of life, liberty, or
property without due process of the law." The Due Process
Clause is "a promise of the Constitution that there is a realm
of personal liberty which the government may not enter,"
including the right of parents to direct the upbringing of their
children. (Planned Parenthood v. Casey (1992) 505 U.S. 833,
847.) Parents have a fundamental liberty interest in the care,
custody and control of their children, an interest the U.S.
Supreme Court found "is perhaps the oldest of the fundamental
liberty interests recognized by this Court." (Truxel v.
Granville (2000) 530 U.S. 57, 65.)
However, that fundamental right is not without limits. States
can enter the private "realm of personal liberty" guaranteed by
the 14th Amendment in cases such as those involving child abuse
and neglect. Moreover, if it appears that a parental decision
will jeopardize the health or safety of the child, there are
limitations to even the claim of a First Amendment right to the
free exercise of religion. (See Prince v. Massachusetts (1944)
321 U.S. 158.) However, all of these actions require that the
parent first be provided with due process, including notice and
the opportunity to be heard.
Termination of Parental Rights Requires Notice, Investigation,
an Opportunity to be Heard and Appointed Counsel for the Parent
and Child : Termination of parental rights severs the
parent-child relationship completely and terminates all rights
of both the child and the parent to each other. Recognizing the
importance of the parent-child relationship and a parent's
fundamental liberty interest in that relationship it is
extremely difficult to terminate parental rights.
Parental rights may be terminated in either family court or
juvenile court. If such termination is sought in the juvenile
court through a dependency proceeding, parents are made parties
to the proceeding, counsel is appointed to represent them and,
if termination does occur, it is only after a very lengthy
process, with ongoing social worker investigations,
reunification services and full representation. The parent also
has the right to appeal the court's decision.
Parental rights may also be terminated in family court, through
a process that results in a child being declared free from the
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custody and control of the parent. Again, as in the juvenile
court proceeding, the parent is provided with notice of the
hearing and an opportunity to be heard. The parent and the
child are also provided with counsel to represent them.
Termination of rights will not occur without clear and
convincing evidence supporting such termination. Again, the
parent also has the right to appeal the court's decision.
As Proposed to be Amended, this Bill Limits the Circumstances in
Which A Parent Can Seek to Change a Child's Name Without Notice
to the Other Parent or an Opportunity to be Heard : As proposed
to be amended, the bill permits, until January 1, 2016 a court
to waive publication of the proposed name change proceedings, as
well as notice to the non-petitioning parent if the court finds
in writing or on the record that such waiver is necessary to
protect the best interests of the child and the petitioning
parent can show all of the following:
The petitioner and the child are participants in the
Safe at Home address confidentiality program;
The petitioner has a final order awarding the petitioner
sole legal and physical custody of the child and does not
permit visitation by the non-petitioning parent;
The child is protected by an order issued after hearing
that prevents the non-petitioning parent from having any
contact with the child until the child is at least 18 years
of age; and
The non-petitioning parent is not subject to an order to
pay child support for that child.
These conditions limit the denial of notice and an opportunity
to be heard to only those parents who are effectively cut off
from their children at least during their children's minority.
Given the constitutionally protected liberty interest of
parents, the bill rightly requires that the changes be time
limited and that the Judicial Council do a study of the effects
of these changes prior to their three-year sunset.
This Bill, By Permitting a Child's Name to be Changed Without
Providing the Child's Parent With the Child's Changed Name,
Terminates That Parent's Rights for All Effective Purposes .
This bill allows a parent to petition for a child's name change
without notifying the other parent of both the hearing and even
the changed name. If a child's name is changed confidentially,
the non-consenting parent may lose access to his or her child
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forever. Practically speaking, a confidential name changes may
well result in a termination of parental rights. As done in
this bill, this termination of parental rights would occur
without notice to the parent, without an opportunity to be
heard, without appointment of counsel, without investigation,
without meeting a clear and convincing standard of proof, and
without the ability to appeal.
However, as discussed above, 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 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.
Amendment Needed to Address Constitutional Rights of Parents :
In order to ensure that this bill does not inadvertently, but
nonetheless effectively, permit a court to terminate parental
rights, without due process of law, this Committee may wish to
amend the bill to ensure that the non-petitioning parent, while
still denied notice of the name change proceeding, is informed
of the child's changed name, after inquiring if the author is
willing to accept such an amendment as an author's amendment.
This needed amendment set forth below will help alleviate the
constitutional concerns that are raised by the bill and help
ensure that not all familial bonds are severed at a hearing
which the parent received no notice of and had no opportunity to
be heard. The following suggested Committee amendment will
ensure the non-petitioning parent knows his or her child's name:
If a court elects to waive publication and notice requirements
pursuant to subparagraph (2) and orders that the child's name be
changed, the petitioner shall serve a copy of that order on the
nonpetitioning parent and, if the changed name is not included
in that order, the child's changed name.
This Bill Rightly Allows a Court to Consider a Child's Wishes :
In 2009, the Legislature recognized the importance of allowing
teenagers, who so desire, to tell address the court during their
parents' custody disputes. (AB 1050 (Ma), Chap. 187, Stats.
2009.) This bill as proposed to be amended, rightly recognized
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the importance of listening to teenagers' wishes when their
names are proposed to be changed. Following AB 1050, this bill
requires that a child who is 14 years of age or older and so
desires be allowed to address the court regarding the child's
proposed name change, unless the court determines that doing so
is not in the child's best interests. This presumption makes
clear that the child's best interest controls and gives the
court discretion to do what is right for the child.
REGISTERED SUPPORT / OPPOSITION :
Support
California Coalition Against Sexual Assault
California Protective Parents Association
Crime Victims Alliance
Crime Victims United of California
Junior League of San Diego
Junior Leagues of California
Secretary of State Debra Bowen
WEAVE
One individual
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334