Spring 2017, Issue 2

Legislative Wrap-up

The following is a summary of the second year for the 2015-2016 legislative term. One of the missions of ACFLS is to monitor California family law legislation and to comment in support of, or in opposition to, bills as they pass through the judiciary committees of the Assembly and Senate. In addition, ACFLS will often offer comments on initiatives arising from committees or commissions whose decisions impact the practice of family law. Some we successfully sought to defeat and others failed to pass despite our efforts of support. These are some of the bills chaptered into law in 2016 affecting family law. ACFLS provided input for some of these bills. Unless otherwise specified, the following became law, effective January 1, 2017.

Assemb. B. 1702

Juveniles; dependent children; reunification services; Cal. Welf. & Instit. Code § 361.5

This bill offers greater protection to children who have been victims of sexual exploitation due to the conduct of their parents. It allows a juvenile dependency court to forego reunification of a dependent child with a parent if the parent participated in or consented to sexual exploitation of the child. Reunification will be considered if the parent was also a victim of sexual exploitation and was coerced into the sexual exploitation of the child.

Assemb. B. 1735

Dissolution of marriage; bifurcated judgment; service of process; Cal. FC § 215

This bill allows for service of process on an attorney of a represented party to be sufficient in bifurcated dissolution cases, unless there have been no filings in the case for six months after the entry of the bifurcated judgment, in which case service must also be on the party.

Assemb. B. 1997

Foster care; Cal. FC §§ 6552, 7911, 7911.1, 7912, 8712, 9201, adding 9203.1; Cal. Welf. & Instit. Code §§ 291, 293, 294, 295, 309, 319.3, 361.2, 361.3, 361.4, 361.45, 361.5, 366.26

Under current law, certain steps are required to determine prospective adoptive parent status. Prospective adoptive status gives due process rights regarding subsequent removal of a child from the care and custody of a prospective adoptive parent. This bill eliminates provisions for that qualification related to adoption home studies. It provides additional grounds under which the court may designate a care provider as a prospective adoptive parent.

Assemb. B. 2349

Assisted reproduction agreements for gestational carriers; Cal. FC §§ 7613, 7620, 7962

This bill extends the jurisdiction of courts under the Uniform Parentage Act to cover proceedings to determine parentage of a child who is conceived under an assisted reproduction agreement for gestational carriers (i.e., surrogacy contracts) under certain specified circumstances. Further specifies what information assisted reproduction agreements must contain.

Assemb. B. 2761

Marriage; Cal. FC §§ 400, 400.1

This bill expands the list of persons authorized to solemnize a marriage to include former members of the Legislature, California’s members of Congress, California constitutional officers, and former city and/or county elected officials, unless they were removed from office for certain offenses. Also provides that judges, like other elected officials, may not accept compensation for solemnizing a marriage while serving on the bench.

Assemb. B. 2872

Children; Cal. FC § 9001; Cal. Welf. & Instit. Code §§ 305.6, 827

Existing law establishes a procedure for a stepparent to adopt a stepchild and requires a probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, or licensed adoption agency to conduct an investigation of the proposed stepparent adoption. This bill provides that if the petitioner does not request that a licensed clinical social worker, therapist, or private adoption agency complete the investigation, the court may collect the investigation fee and assign a probation officer, court investigator, or, if authorized, the county welfare department to complete the investigation.

Secondly, existing law prohibits a peace officer from taking into temporary custody, without a warrant, a minor who is in a hospital if specified conditions exist, including that the minor is a newborn who tested positive for illegal drugs or whose birth mother tested positive for illegal drugs or the minor is the subject of a proposed adoption and a Health Facility Minor Release Report has been completed by the hospital. This bill requires the appropriate hospital personnel to complete a Health Facility Minor Release Report and provide copies to specified parties upon request.

Thirdly, this bill permits a statutorily authorized or court-appointed investigator who is conducting specified investigations relating to children, including stepparent adoptions, to inspect a juvenile case file.

S.B. 875

Solemnization of marriage; county sheriff; Cal. FC § 400

This bill expands the lists of persons authorized to solemnize a marriage to include sheriffs subject to the same requirements as others authorized by statute to solemnize a marriage.

S.B. 1060

Postadoption contact; siblings of dependent children or wards; Cal. FC § 8616.5; Cal. Welf. & Instit. Code §§ 366.3, 727.3, 16002

Requires a county placement agency to convene a meeting with a dependent, the dependent’s sibling or siblings, the prospective adoptive parent or parents, and a facilitator to decide whether to voluntarily execute a postadoption sibling contact agreement. Further requires the court to inquire about the status and results of this meeting at the first six-month review hearing.

S.B. 1255

Anti-Davis; defines date of separation; Cal. FC § 70

This bill garnered considerable input from numerous family law legal organizations. Both ACFLS and the Executive Committee of the Family Law Section of the State Bar of California worked on this bill and testified before the Assembly. The new law overturns the controversial decision In re Marriage of Davis, 189 Cal. Rptr. 3d 835 (2015), which re-set the date of separation in family law. It further abrogates In re Marriage of Norviel, 126 Cal. Rptr. 2d 148 (2002). Section 70 now defines the date of separation to mean the date that a complete and final break in the marital relationship has occurred, as evidenced by the spouse’s expression of his or her intent to end the marriage and conduct that is consistent with that intent taking into account all relevant evidence in determining the date of separation. This appears to return us to the pre-Davis era and allows parties to remain living together during the dissolution action in consideration of financial or child custody concerns. This bill did not specifically address retroactivity of cases during the interim period when Davis was controlling law and the enactment of Section 70.

S.B. 1336

Dependent children; investigation of relatives; Cal. Welf. & Instit. Code § 358

This bill requires a court to make a finding as to whether the social worker has exercised due diligence in conducting an investigation to identify, locate, and notify a child’s relatives whenever a child is removed from a parent’s or guardian’s custody, and specifies the factors to consider in making that determination.

Assemb. B. 2098 Defeated

Assembly Bill 2098 bears mentioning in this article. This bill sought to require the court to permit a child who is seven 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. Existing law requires the court to consider and give due weight to the wishes of a child in making an order granting or modifying custody or visitation, if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation. Existing law also requires the court to permit a child who is fourteen 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. Several legal organizations opposed this bill including ACFLS, who sent a letter in opposition to it. As a result of ardent opposition from legal organizations like ACFLS, this bill was defeated. However, it is likely that there will be another bill in the foreseeable future that attempts to lower the child’s age for preference.

CLRC Study of Mediation Confidentiality Statutes

In 2016, the California Law Revision Commission (CLRC) invited public comment regarding the Relationship Between Mediation Confidentiality and Attorney Malpractice and other Misconduct. The CLRC spent two years studying interest in a proposal to create an exception to “mediation confidentiality,” as set forth in Evidence Code section 1119, et seq. in response to the California Supreme Court case, Cassel v. Superior Court, 119 Cal. Rptr. 3d 437 (2011). It is probable the CLRC will propose a statute to create such an exception. The CLRC will be taking testimony and acquiring further information before seeking a legislative sponsor to introduce and guide a bill through the California Legislature. ACFLS will continue to monitor its legislative journey.