Winter 2016, Issue 1

2015 LEGISLATIVE WRAP-­UP

The following is a summary of the first year for the 2015–2016 legislative term. These are some of the selected bills on which ACFLS has provided input to the California State Legislature and which have been chaptered into law. There are many other bills that were introduced, but never made it into law, some because we worked successfully to defeat them, and others that were not passed despite our efforts to support them. Unless specified directly below, these bills became law as of January 1, 2016.

1. The following bills have been Chaptered:

AB 139: Nonprobate transfers: revocable transfer upon death deeds. This bill amends sections 2337 and 2040 of the Family Code and some probate code sections. This legislation allows for a Transfer upon Death Deed under certain circumstances that allows a party to avoid probate and transfer real property to third parties; a provision was placed in the ATROs to protect the community property of the parties.

AB 365: Child custody proceedings: testimony by electronic means. This bill amends section 3012 of the Family Code and requires the court to allow a party, whose deportation or detention by the federal Department of Homeland Security materially affects his or her ability to appear in person at a child custody proceeding, to present testimony and evidence and participate in mandatory child custody mediation by electronic means, including telephone, video teleconferencing, or other means, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

AB 380: Marriage: putative spouses. This bill amends section 2251 of the Family Code and requires the court, only upon request of a party who is declared a putative spouse, to divide the quasi-marital property that would have been community property or quasi-community property if the marriage was valid, as if it were community property. This bill was sponsored by the Conference of California Bar Associations (formerly the Conference of Delegates.)

AB 439: Protective orders: batterer’s program. AB 439 requires restrained parties who are ordered to attend a batterer’s program to 1) register for the program by a deadline date set by the court, but no later than thirty days from the date the restraining order is issued: and 2) upon enrollment into the program, sign all necessary consent forms for the program to release proof of enrollment, attendance records, and completion or termination reports to the court and the protected party or his or her attorney. Currently, victims of domestic violence do not have a way of monitoring the restrained party’s enrollment and progress in a court ordered batterer’s program. The intent of this legislation is to increase accountability, increase safety of protected parties, and improve the court’s ability to make orders in the best interest of children. This bill was sponsored by Flexcom.

AB 494: Restraining orders: protection of animals. This bill relates to civil harassment cases and amends CA Code of Civil Procedure section 527.6, as well as certain sections in the Welfare and Institutions Code. AB 494 extends protections to companion animals of protected parties in restraining orders issued in juvenile dependency cases, civil harassment cases, and elder abuse cases. Animal abuse is often correlated with family violence. It has been found that many persons who abuse their family members and intimate partners also threaten, injure, or kill their victims’ pets, as a very effective way to intensify the effects of their abusive behavior. Previous to this legislation, pets were only protected in domestic violence restraining orders. This legislation brings all types of restraining orders in alignment with the protections provided by the Domestic Violence Prevention Act. This bill was sponsored by Flexcom.

AB 536: Mutual domestic violence. This bill amends section 6305 of the Family Code. AB 536 ensures that when the court is determining whether to issue mutual domestic violence restraining orders, each party must present his or her written evidence of abuse by using a mandatory restraining order application form. Prior to this legislation, the court would sometimes issue mutual domestic violence restraining orders based on a written request that contained a responsive declaration. AB 536 specifies that both parties must submit their written requests for domestic violence restraining orders using the mandatory Judicial Council restraining order application form. This bill was sponsored by Flexcom.

AB 610: Child support: suspension of support order. This bill repeals section 4007.5 of the Family Code (which sunset) and then adds it back to the Family Code in an amended format. This bill is emergency legislation introduced to extend the statute to 1/1/20 and makes other changes by repealing the old version of the code. By operation of law, as soon as the period of a payor’s qualifying incarceration commences, support is set to zero. The bill specifies that the existing child support order goes back into effect on the first day of the first full month after release without limiting the obligor’s right to file a motion to modify.

This applies to all child support cases not just DCSS cases as the prior 4007.5 statute did. A report is required by the Judicial Council by 2019 and the statute sunsets again in 2020. (The original statute was a pilot project that was supposed to have a report issued; nothing had been done and the statute was sunsetting.)

AB 960: Parentage: assisted reproduction. This bill amends sections 7613 and 7613.5 of the Family Code. This bill provides that the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction is treated as if the donor were not the natural parent of the child, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child. In addition, it provides, if the semen is not provided to a licensed physician and surgeon or a licensed sperm bank, that the donor of semen for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if the donor were not the natural parent of the child, if either the donor and the woman agreed in a writing prior to conception that the donor would not be a parent, or a court finds by clear and convincing evidence that the child was conceived through assisted reproduction and that, prior to the conception of the child, the woman and the donor had an oral agreement that the donor would not be a parent. Further, the bill also provides that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor and the woman intended for the donor to be a parent. This bill also creates a new form for assisted reproduction that provides clarity regarding a person’s intent to be a legal parent if he or she is using assisted reproduction that results in a child at the time of conception from a known sperm or ova donor. The bill also states that the use of this form, if signed prior to the conception of a child, is presumed to satisfy the writing requirement described above.

AB 1049: Parent & child relationship. This bill amends sections 7612, 7960, and 7961 of the Family Code. This bill states that a person’s offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but shall not be determinative as to the issue of legal parentage in any proceedings regarding the establishment or termination of parental rights. In addition, this bill requires a nonattorney donor facilitator to direct his or her client to deposit client funds in an independent, bonded escrow account or a trust account maintained by an attorney, subject to specified withdrawal requirements, just as a nonattorney surrogacy facilitator is required to do. (This bill was sponsored by the Adoption committee.)

AB 1081: Protective orders. This bill amends sections 527.6, 527.8, and 527.85 of the Code of Civil Procedure, amends sections 242, 243, and 245 of the Family Code, and amends sections 213.5 and 15657.03 of the Welfare and Institutions Code. This bill permits either party to request a continuance of the hearing, as specified, which the court would be required to grant on a showing of good cause. Additionally, it permits the request to be made in writing before or at the hearing or orally at the hearing, and would additionally authorize the court to grant a continuance on its own motion. If the court grants a continuance, the bill requires that any temporary restraining order that had previously been granted remain in effect until the conclusion of the continued hearing, and authorizes the court to modify or terminate any temporary restraining order. Further, the bill modifies the requirements for notice to a respondent so that the respondent is warned that if he or she does not attend the hearing, the court may make orders against him or her that could last up to five years. Lastly, in a matter in which a civil harassment, workplace violence, or elder or dependent adult abuse temporary restraining order or order after hearing prohibiting harassment or abuse is sought, the bill provides that the respondent is entitled, as a matter of course, to one continuance for a reasonable period to respond to the petition.

AB 1407: Family law, protective orders: wireless telephone numbers. This bill adds section 6347 to the Family Code. Commencing July 1, 2016, this bill authorizes a court, after notice and a hearing, to issue an order directing a wireless telephone service provider to transfer the billing responsibility and rights of a wireless telephone number or numbers to a requesting party. The bill also requires that order to be a separate order directed to the wireless telephone service provider that lists the name and billing telephone number of the accountholder, the name and contact information of the person to whom the number or numbers will be transferred, and each number to be transferred to that person. Upon transfer of billing responsibility for and rights to a wireless telephone number or numbers, the requesting party is to assume all financial responsibility for the transferred wireless telephone number or numbers, monthly service costs, and costs for any mobile device associated with the wireless telephone number or numbers. This new statute would not affect the ability of the court to apportion the assets and debts of the parties as provided for in law, or the ability to determine the temporary use, possession, and control of personal property, as specified. A cause of action against a wireless telephone service provider, its officers, employees, or agents, for actions taken in accordance with the terms of the court order is prohibited. This bill requires the Judicial Council to, on or before July 1, 2016, develop any forms or rules necessary to effectuate these provisions.

AB 1519: Family support. This bill amends section 2104(f) of the Family Code. Currently, parties to a marital dissolution or legal separation are required to exchange certain financial information early in the process, known as Preliminary Declarations of Disclosure. Family Code section 2014(f) requires the Preliminary Declaration of Disclosure in dissolution cases to be served within 60 days of filing of the Petition of Dissolution or the Response. This bill adds legal separations to the disclosure time frames of 2014(f). (This bill was sponsored by Flexcom.)
SB 28: Spousal support, domestic violence. This bill adds to Family Code section 4320 a provision that includes any nolo contendere plea included within the documented evidence of domestic violence to be considered by the court when determining an award of spousal support.

SB 340: Dissolution, disclosure. This bill amends section 2110 of the Family Code. This bill creates a narrow exception to the service for dissolution and legal separation declarations of disclosure when a petition was served by posting or publication and the respondent defaulted. SB 340 creates a privacy protection measure that allows courts to protect parties in divorce cases from having to spend time and resources and send highly confidential and personal financial information out when it is clear that the intended recipient is no longer at the last known address and will never see them. (This bill was sponsored by Flexcom.)

SB 594: Child custody. This bill amends section 3111 of the Family Code. This bill specifies that a child custody evaluation, investigation, or assessment, and any resulting report, may only be considered by the court if the evaluation, investigation, or assessment, and any resulting report, is conducted in accordance with the minimum requirements. Specifically, the new statute states:

A child custody evaluation, investigation, or assessment, and any resulting report, may be considered by the court only if it is conducted in accordance with the requirements set forth in the standards adopted by the Judicial Council pursuant to Section 3117; however, this does not preclude the consideration of a child custody evaluation report that contains nonsubstantive or inconsequential errors or both.

SB 646: Uniform Interstate Family Support Act. This bill amends various provisions of the Family Code relating to support. This bill reflects a mandate of the federal government to adopt the most current (2008) amended language of UIFSA into California statute. This bill brings California into compliance with the requirements of the federal government.

2. Proposed Legislation:

A. Discovery Act legislation: A Sonoma County committee has drafted proposed legislation under the guidance of Commissioner Louise Bayles­-Fightmaster that encompasses all family law discovery. This proposed legislation is being sent out for public comment prior to placement.

B. Anti­-Davis legislation: The following are versions of the Anti­-Davis legislation on which various organizations have had input and ACFLS submitted for the stakeholders’ meeting on November 12, 2015 for discussion; we also discussed the issue of retroactivity as well as other topics:

1. Version 1:

Family Code section 771
(a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse. Except as set forth in Sections 3104 and 6922 of the Family Code, “living separate and apart” requires: (1) that either spouse express his or her intent to end the marriage to the other spouse, and (2) objective evidence of conduct consistent with that spouse’s intent to end the marriage. It is not required that the spouses live in separate households when determining if they are “living separate and apart”, although their physical separation is a factor to be considered in the totality of the circumstances which indicate that a complete and final breakdown of the marriage has occurred.

(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to the contract of a type described in Section 6750 shall remain the sole legal property of the minor child.

2. Version 2:

Family Code Section 771: (a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, who is living separate from the other spouse, are the separate property of the spouse. To be living separately requires: (1) that either spouse express his or her intent to end the marriage to the other, and (2) objective evidence of conduct consistent with that spouse’s intent to end the marriage, considering the totality of the circumstances which indicate that a complete and final breakdown of the marriage has occurred. It is not required that the spouses live in separate households, although their physical separation is a factor to be considered in determining whether the parties are living separately.

(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to the contract of a type described in Section 6750 shall remain the sole legal property of the minor child.

3. Version 3:

Family Code section 131 will be added to the Code:
“Date of Separation” is the date that the spouses begin to live separately or apart by establishing both of the following mandatory conditions: (1) that either spouse express his or her intent to end the marriage to the other, and (2) objective evidence of conduct consistent with that spouse’s intent to end the marriage, considering the totality of the circumstances which indicate that a complete and final breakdown of the marriage has occurred. It is not required that the spouses live in separate households, although their physical separation is a factor to be considered in determining the date of separation.

Family Code section 771 will be amended with the following language:

After the date of separation each spouse’s respective earnings and accumulations are their separate property.

Other Family Code sections:

Possibly amend other statutes to remove “living separate and apart” or “living separately” to replace with date of separation.