Series 09 - Family - Conference of California Bar Associations

RESOLUTION 09-01-2015
DIGEST
This Resolution deletes the reference to Family Code section 20102 from Family Code section
7612.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend California Family Code section 7612 to read as follows:
§7612
(a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3
(commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section
7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: Bar Association of Northern San Diego County
STATEMENT OF REASONS
The Problem: Existing law contains a reference to Family Code section 20102 in Family Code
section 7612. Family Code section 20102 was repealed in 1993, hence the reference to it in
Family Code section 7612 is obsolete.
The Solution: This Resolution deletes the reference to Family Code section 20102 from Family
Code section 7612.
IMPACT STATEMENT
This proposed resolution does not affect any other law, statute or rule.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT: Mary V.J. Cataldo, Esq., Procopio, Cory,
Hargreaves & Savitch, LLP, 12544 High Bluff Drive, Ste. 300, San Diego, CA 92130; (760)
444-1773; mary.cataldo@procopio.com
RESPONSIBLE FLOOR DELEGATE: Mary V.J. Cataldo, Esq.
RESOLUTION 09-02-2015
DIGEST
Family Law: Spousal transfers
Amends Family Code section 721 eliminating the uncertainty regarding whether or when
standard spousal property transfers taking effect at the transferor’s death create a presumption of
undue influence by the transferee
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend Family Code section 721 to read as follows:
§721
(a) Subject to subdivision (b), either spouse may enter into any transaction with the other,
or with any other person, respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, and 16047of the Probate Code,
in transactions between themselves, spouses are subject to the general rules governing fiduciary
relationships that control the actions of persons occupying confidential relations with each other.
This confidential relationship imposes a duty of the highest good faith and fair dealing on each
spouse, and neither shall take any unfair advantage of the other. This confidential relationship is
a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as
provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not
limited to, the following:
(1) Providing each spouse access at all times to any books kept regarding a transaction
for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all things affecting any
transaction that concerns the community property. Nothing in this section is intended to impose a
duty for either spouse to keep detailed books and records of community property transactions.
(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from
any transaction by one spouse without the consent of the other spouse that concerns the
community property.
(c) A transfer between spouses that takes effect or becomes irrevocable at the transferor’s
death is not a transaction within the meaning of this section.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: Sacramento County Bar Association
STATEMENT OF REASONS
The Problem: Existing law is unclear regarding whether or when standard spousal property
transfers taking effect at the transferor’s death create a presumption of undue influence by the
transferee under Family Code section 721 (“Section 721”). Lintz v. Lintz (2014) 222 Cal.App.4th
1346 creates estate planning uncertainty by suggesting that standard spousal property transfers
taking effect at the transferor’s death create a presumption of undue influence by the transferee
under Section 721. In Lintz, revocable trust terms changed over time to improve the surviving
spouse’s situation to the point where she controlled the husband’s estate and could exclude his
children. The court held that with respect to amendments after a certain point, the probate court
should have applied a presumption of undue influence under Subsection (b) of Section 721,
which states in relevant part as follows:
…[I]n transactions between themselves, spouses are subject to the general rules governing
fiduciary relationships that control the actions of persons occupying confidential relations with
each other. This confidential relationship imposes a duty of the highest good faith and fair
dealing on each spouse, and neither shall take any unfair advantage of the other….[Emphasis
added]
The central portions of the court’s analysis state as follows:
Family Code section 721 applies here. ...[T]here is no indication in the record before us that the
probate court applied the presumption of undue influence arising from that section. The
presumption should have been applied …. The trust advantaged defendant [wife] by …giving
[her] the right to … pass decedent’s property either to her own children or to her individual
estate.
222 Cal.App.4th at page 1353.
This analysis has numerous flaws. First, Section 721 applies only to “transactions” between
spouses, but there is no definition of “transaction” for this purpose, and typical spousal estate
planning transfers that take effect or become irrevocable at the transferor’s death do not meet
standard “transaction” definitions. Second, Section 721 mentions neither undue influence nor a
presumption. Third, Section 721applies only when one spouse takes an “unfair advantage” of
the other, but the court did not consider the fairness of the transfers. Fourth, the court did not
analyze whether a spouse’s improvement in position is relative to the spouse’s intestate share or
relative to a prior estate planning document, and either approach raises policy concerns and the
potential for irrational results. Finally, the court did not indicate whether the presumption
applies even when the transferring documents take effect at death or are revocable and, therefore,
the transferee spouse’s position does not legally improve until the transferor’s death. The court
issued an opinion that creates significant uncertainty in standard spousal estate planning.
The Solution: This Resolution would propose to eliminate this uncertainty through an
amendment to Section 721. Because Family Code Section 721 applies only to a “transactions,”
amending that statute to exclude from the definition of a “transaction” spousal transfers taking
effect or becoming irrevocable at the transferor’s death would resolve most of the uncertainty
Lintz has created.
IMPACT STATEMENT
The proposed resolution does not affect any other law, statute or rule.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT: Sil Reggiardo, Downey Brand LLP
621 Capitol Mall, Suite 1800, Sacramento, CA 95814-4731, (916) 520-5374
sreggiardo@downeybrand.com.
RESPONSIBLE FLOOR DELEGATE: Sil Reggiardo
RESOLUTION 09-03-2015
DIGEST
This resolution would create an exception to the mediation privilege, for communications
between spouses or RDC that constitute a fraudulent breach of fiduciary duty.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend California Evidence Code section 1120, to read as follows:
§1120
(a) Evidence otherwise admissible or subject to discovery outside of a mediation or a
mediation consultation shall not be or become inadmissible or protected from disclosure solely
by reason of its introduction or use in a mediation or a mediation consultation.
(b) In family law actions, evidence of a breach of the fiduciary duty by a spouse, as set
forth in Sections 721 and 1100, that falls within the ambit of Section 3294 of the Civil Code shall
be admissible and subject to discovery.
(c) This chapter does not limit any of the following:
(1) The admissibility of an agreement to mediate a dispute.
(2) The effect of an agreement not to take a default or an agreement to extend the time
within which to act or refrain from acting in a pending civil action.
(3) Disclosure of the mere fact that a mediator has served, is serving, will serve, or was
contacted about serving as a mediator in a dispute.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: The Bar Association of San Francisco
STATEMENT OF REASONS:
The Problem: Family law litigants stand in a unique position in that they owe fiduciary duties to
one another. While the mediation privilege promotes an important public policy, guarding
against one spouse / RDP inducing the other to settle a dissolution case through the use of false,
misleading, or fraudulent information is also an important public policy. This resolution seeks to
balance these policies, by providing that when a breach of fiduciary duty that rises to a fraud
(violation of Civil Code Section 3294) occurs in family law mediation, the spouse who was
harmed by that can present evidence about the breach to the court.
Existing law totally bars admission of any communications made during mediation, even if
blatant fraud occurred, and with no exceptions regardless of the circumstances or prejudice
caused.
The Solution: This resolution adds an exception to the mediation privilege.
-1-
IMPACT STATEMENT
This proposed resolution does not affect any other law, statute or rule.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT: Michelene Insalaco, 101 Spear Street, Suite
1640 San Francisco CA 94105, (415) 357-5050 MI@Sucherman-Insalaco.com
RESPONSIBLE FLOOR DELEGATE: Michelene Insalaco
-2-
RESOLUTION 09-04-2015
DIGEST
Adds Family Code section 297.6 to allow registered domestic partners to convert their
partnership to a marriage, with the effective date of marriage being the date of the domestic
partnership registration.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to add Family Code section 297.6 to read as follows:
§ 297.6
Registered domestic partners may apply to have their partnership converted into a
marriage. For purposes of determining the legal rights and responsibilities involving individuals
who had previously had a registered domestic partnership and are deemed married under the
provisions of this section, the date of the original registered domestic partnership is the legal date
of the marriage.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: Bay Area Lawyers for Individual Freedom
STATEMENT OF REASONS
The Problem: Prior to June 28, 2013, same-sex couples were prohibited from marrying in
California (other than during the four-plus month period before Proposition 8 was passed in
2008). While same-sex couples have been able to become registered domestic partners in
California since 1999, registered domestic partnerships (RDPs) are not considered marriages for
the purposes of Federal law.
Various benefits are contingent on a date of marriage. In one example, an ERISA-governed
retirement plan may incorporate a requirement that a couple be married for a period (e.g., at least
a year) prior to the annuity starting date for a spouse to be entitled to the annuity.
Further, denied the ability to legally marry, many same-sex couples that entered an RDP viewed
their RDP as a marriage. However, under existing law, they must apply for a marriage license
and go through the ceremonial requirements of a marriage. While some same-sex couples in a
RDP may want to do so, others view this as unnecessary and duplicative.
The Solution: This resolution would allow registered domestic partners to convert their
partnership to a marriage, with the effective date of marriage being the date of the domestic
partnership registration.
-1-
IMPACT STATEMENT
This resolution does not affect any other law, statute or rule.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT: Denise Bergin, Weaver Austin Villeneuve
& Sampson LLP, 555 12th St., Ste 1700, Oakland, CA 94607; 510-267-4142;
dbergin@wavsip.com
RESPONSIBLE FLOOR DELEGATE: Denise Bergin
-2-
RESOLUTION 09-05-2015
DIGEST
This proposal seeks to amend Family Code Section 2104 by adding an additional provision to
include a requirement that when completing a Preliminary Declaration of Disclosure in a Family
Law proceeding, each and every box on the required Schedule of Assets and Debts must
automatically be filled in, for the purpose of avoiding the purposeful and/or negligent omission
of certain Assets and Debts.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend California Family Code section 2104 to read as follows:
§2104
(a) Except by court order for good cause, as provided in Section 2107, in the time period
set forth in subdivision (f), each party shall serve on the other party a preliminary declaration of
disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council. The
commission of perjury on the preliminary declaration of disclosure may be grounds for setting
aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with
Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are
available under law for the commission of perjury. The preliminary declaration of disclosure
shall include all tax returns filed by the declarant within the two years prior to the date that the
party served the declaration.
(b) The preliminary declaration of disclosure shall not be filed with the court, except on
court order. However, the parties shall file proof of service of the preliminary declaration of
disclosure with the court.
(c) The preliminary declaration of disclosure shall set forth with sufficient particularity,
that a person of reasonable and ordinary intelligence can ascertain, all of the following:
(d) The identity of all assets in which the declarant has or may have an interest and all
liabilities for which the declarant is or may be liable, regardless of the characterization of the
asset or liability as community, quasi-community, or separate.
(e) The declarant's percentage of ownership in each asset and percentage of obligation for
each liability where property is not solely owned by one or both of the parties. The preliminary
declaration may also set forth the declarant's characterization of each asset or liability.
(d) A declarant may amend his or her preliminary declaration of disclosure without leave
of the court. Proof of service of any amendment shall be filed with the court.
(e) Along with the preliminary declaration of disclosure, each party shall provide the
other party with a completed income and expense declaration unless an income and expense
declaration has already been provided and is current and valid.
(f) The petitioner shall serve the other party with the preliminary declaration of disclosure
either concurrently with the petition for dissolution, or within 60 days of filing the petition. The
respondent shall serve the other party with the preliminary declaration of disclosure either
concurrently with the response to the petition, or within 60 days of filing the response. The time
periods specified in this subdivision may be extended by written agreement of the parties or by
court order.
(g) A preliminary declaration of disclosure shall not be deemed to be properly completed
unless each and every box on the Scheduled of Assets and Debts is filled in.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: The Los Angeles County Bar Association
STATEMENT OF REASONS
The Problem: Current law makes mandatory in all Divorce and Legal Separation proceedings,
the exchange of Preliminary Declarations of Disclosures. (“PDDs”). Among the required
documents that must be exchanged within such PDDs are forms entitled “Schedule of Assets and
Debts.” This form has various categories for each type of property that a person can own. By
way of example, categories include but are not limited to “real property” “checking accounts”
“retirement accounts,” etc. The purpose of the form is to ensure that when getting divorced, a
spouse discloses to the other spouse all of the assets that he/she owns. Other information, such as
the date the asset was acquired, the value of the asset and the spouse’s alleged characterization of
the asset (community or separate or mixed) must also be provided. Despite the various categories
which are pre-printed on the form, many practitioners tend to leave certain categories blank. This
is either because they think that if there is no real property, for example, that the category does
not need to have the word “none” or the figure “0” inserted. However, some practitioners and/or
self-represented spouses may leave a blank in the form for the specific purpose of avoiding
having to disclose a hidden asset that they do not want the other spouse to become aware of. As a
result of this latter possibility, practitioners who receive such Schedules with blanks on them,
must of necessity contact the attorney (or self-represented Party) who prepared the Schedule and
request a new one with the form to be fully completed. This becomes a burdensome task which
should not have to be undertaken. And, on occasion, certain practitioners( or self-represented
Parties) actually refuse to remedy this defect and refuse to provide revised fully completed
forms.
The Solution: The proposed revision to the current statute would address this problem by
specifically providing that in order to be in compliance with the law which requires that
Preliminary Declarations of Disclosure be exchanged, that each and every form must be fully
completed and filled out.in all particulars. This will eliminate the need in most cases to
protracted correspondence or even court hearings on this issue.
IMPACT STATEMENT
The proposed Resolution does not affect any other law, statute or Rule.
CURRENT OR PRIOR RELATED LEGISLATION
It is believed that this particular proposed change has not heretofore been considered by the
Legislature.
AUTHOR AND/OR PERMANENT CONTACT: Avery M. Cooper, Esq., Cooper-Gordon
LLP, 2530 Wilshire Blvd., Third Floor, Santa Monica, CA. 90403, 310-829-9918,
averyc@cooper-gordon.com
RESPONSIBLE FLOOR DELEGATE: Avery M. Cooper, Esq.
RESOLUTON 09-06-2015
DIGEST
Juvenile Law: This resolution would provide biological fathers with standing to participate in
their children’s juvenile dependency cases. Specifically, it would give biological fathers the
same access to custody, visitation, and reunification services that biological mothers currently
receive, as a matter of law. It would also amend the code to recognize gender neutral and third
parent families where appropriate.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend California Welfare and Institutions Code sections 290.1, 290.2, 302, 316.2,
361.2, and 361.5 to read as follows:
§290.1
Duty to File Petition and Give Notice (a) Notice shall be given to the following persons
whose whereabouts are known or become known prior to the initial petition hearing: (1)The
mother or mothers, presumed, biological and alleged. (2) The father or fathers, presumed,
biological, and alleged.
§290.2
Issuance and Service of Notice.
(a) Notice shall be given to the following persons whose
address is known or becomes known prior to the initial petition hearing: (1) The mother or
mothers, presumed, biological and alleged. (2) The father or fathers, presumed, biological, and
alleged.
§302
Assumption of jurisdiction regardless of custody by one or both all parents; notice to
parents; report of social worker; custodial rights. (b) Unless parental rights have been terminated,
both all parents shall be notified of all proceedings involving the child. The court must make
findings on the record that a parentage inquiry and all required notice was performed pursuant to
section 316.2.
(c) In any case where the social worker....
§316.2: Presumed or alleged fathers parents; inquiry by court; notice; termination of rights;
jurisdiction
(a) At the detention hearing, or as soon thereafter as is practicable, the court shall inquire
of the mother and any other appropriate person as to the identity and address of all presumed,
biological, or alleged fathers parents. The presence at the hearing of a man claiming to be the
father shall not relieve the court of its duty of inquiry. The inquiry shall include at least all of the
following, as the court deems appropriate:
(1) Whether a judgment of paternity already exists. (2) Whether the mother was married
or believed she was married at the time of conception of the child or at any time thereafter. (3)
Whether the mother was cohabiting with a man another parent of the child at the time of
conception or birth of the child. (4) Whether the mother has received support payments or
promises of support with respect to the child or in connection with her pregnancy. (5) Whether
any man parent has formally or informally acknowledged or declared his possible paternity
parentage of the child, including by signing a voluntary declaration of paternity. (6) Whether
paternity tests have been administered and the results, if any. (7) Whether any parenting adult
otherwise qualifies as a presumed father parent pursuant to Section 7611, or any other provision,
of the Family Code. (8) The name of any parenting adult identified through this inquiry. (9) The
contact information, including phone number, email address and physical address of any
parenting adult identified through this inquiry.(10) If information pursuant to (a)(9) is not
available, the name and contact information for any grandparent or other family friend or relative
that might have access to this information.
(b) If, after the court inquiry, one or more men adults are identified as an alleged father
parent, each alleged father parent shall be provided notice at his or her last and usual place of
abode or through information gathered pursuant to (a)(9) and (10) by certified mail return receipt
requested alleging that he or she is or could be the father parent of the child. The notice shall
state that the child is the subject of proceedings under Section 300 and that the proceedings could
result in the termination of parental rights and adoption of the child. Judicial Council form
Paternity---Waiver of Rights (JV---505) shall be included with the notice.
Nothing in this section shall preclude a court from terminating a father’s parent’s parental
rights even if an action has been filed under Section 7630 or 7631 of the Family Code.(c)The
court may determine that the failure of an alleged father parent to return the certified mail receipt
is not good cause to continue a hearing pursuant to Section 355, 358, 360, 366.21, or 366.22.
(d) If an alleged father parent appears in the dependency action and files an action under Section
7630 or 7631 of the Family Code, the court shall determine if he is the father a presumed or
biological parent.
§361.2
(a) When a court orders removal of a child pursuant to Section 361, the court shall first
determine whether there is a presumed or biological parent of the child, with whom the child was
not residing at the time that the events or conditions arose that brought the child within the
provisions of Section 300, who desires to assume custody of the child. If that parent requests
custody, the court shall place the child with the parent unless it finds that placement with that
parent would be detrimental to the safety, protection or physical or emotional well---being of the
child....
(b)(3) Order that the parent assume custody subject to the supervision of the juvenile
court. In that case the court may order that reunification services be provided to the parent or
guardian from whom the child is being removed, or the court may order that services be provided
solely to the parent who is assuming physical custody in order to allow that that parent to retain
later custody without court supervision, or that services be provided to both all parents, in which
case the court shall determine, at review hearings held pursuant to Section 366, which parent, if
either any shall have custody of the child.
(c) The court shall make a finding either in writing or on the record of the basis for its
determination under subdivisions (a) and (b). The court shall not make findings pursuant to
Section 361 until noticing of all alleged parents has been completed and parentage
determinations have been resolved, pursuant to section 316.2.
§361.5
(a)....”[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile
court shall order the social worker to provide child welfare services to the child and the child’s
mother and, statutorily presumed parent, and biological father. If the child has been removed
from a legal guardian’s custody, then the court shall order reunification services to the guardians.
Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration
of paternity by any court of competent jurisdiction, the juvenile court may order services for the
child and the biological father, if the court determines that the services will benefit the child.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: The Bar Association of San Francisco
STATEMENT OF REASONS
The Problem: Existing law recognizes many types of fathers: alleged fathers who merely have
the right to elevate their paternity status to that of either biological father or presumed father.
Only presumed fathers have the right to be evaluated for custody and visitation. Only presumed
fathers have the right to receive reunification services to address the issues that led to the child
be removed from parental custody in order to prove to the court that they can provide a safe and
appropriate home for the child. Existing law was recently amended to allow for three parents in
appropriate cases. This change to Family Code Section 7612(c) allows the dependency court to
keep both a psychological father and a biological father involved in a child’s life. The courts
have split over many issues regarding how to achieve presumed father status. Previously, a
biological father could obtain presumed father status by signing a voluntary declaration of
paternity declaring to be the biological father, which served as equivalent to a judgement of
paternity. Now, case law has questioned whether this is still good law. Moreover, recent case
law has declared that a judgement of paternity for the purposes of Child Support collections
should not be considered a judgement of paternity for dependency purposes. Courts need a
unified and simple standard to apply so that children can have a fair and unbiased determination
of parentage.
The Solution: Biological fathers should have the same rights as presumed fathers to request a
determination by the court for custody as a non-custodial parent. Biological fathers should have
access to reunification services. Biological mothers who are accused of abuse and neglect are
given reunification services as a matter of law. This resolution grants these same rights to
biological fathers.
IMPACT STATEMENT
This resolution does not impact any other law, statute, or rule.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT: Jill McInerney, 459 Fulton Street, Suite 208,
San Francisco, CA 94102; (415) 310-6048, jill@jillmcinerneylaw.com
RESPONSIBLE FLOOR DELEGATE: Jill McInerney
RESOLUTION 09-07-2015
DIGEST
This Resolution amends Family Code section 2104 to make an exchange of preliminary
declarations of disclosure optional.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend California Family Code section 2104 to read as follows:
§2104
(a) Except by court order for good cause, as provided in Section 2107, in the time
period set forth in subdivision (f), upon request, each party shall serve on the other party a
preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed
by the Judicial Council. The commission of perjury on the preliminary declaration of
disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant
to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies,
civil or criminal, that otherwise are available under law for the commission of perjury. The
preliminary declaration of disclosure shall include all tax returns filed by the declarant within
the two years prior to the date that the party served the declaration.
(b) The preliminary declaration of disclosure shall not be filed with the court, except
on court order. However, the parties shall file proof of service of the preliminary declaration
of disclosure with the court.
(c) The preliminary declaration of disclosure shall set forth with sufficient particularity,
that a person of reasonable and ordinary intelligence can ascertain, all of the following:
(1) The identity of all assets in which the declarant has or may have an interest and all
liabilities for which the declarant is or may be liable, regardless of the characterization of the
asset or liability as community, quasi-community, or separate.
(2) The declarant's percentage of ownership in each asset and percentage of obligation
for each liability where property is not solely owned by one or both of the parties. The
preliminary declaration may also set forth the declarant's characterization of each asset or
liability.
(d) A declarant may amend his or her preliminary declaration of disclosure without
leave of the court. Proof of service of any amendment shall be filed with the court.
(e) Along with the preliminary declaration of disclosure, each party shall provide the
other party with a completed income and expense declaration unless an income and expense
declaration has already been provided and is current and valid.
(f) The petitioner shall serve the other party with the preliminary declaration of
disclosure eit her co ncurrent ly wit h t he pet it ion for disso lut io n, or within 60 days of
being req uested filing the petition. The respondent shall serve the other party with the
preliminary declaration of disclosure either concurrently with the response to the petition, or
within 60 days of being requested f i l i n g t h e r e s p o n s e . The time periods specified in this
subdivision may be extended by written agreement of the parties or by co ur t order. (Am Stats
201 2, C107)
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: Bar Association of Northern San Diego County
STATEMENT OF REASONS
The Problem: Currently parties are required to exchange preliminary declarations of disclosure.
Many parties are self-represented and do not timely exchange these documents. Often cases are
delayed and continued as Judgment cannot be entered without this exchange. Many parties are
willing to waive preliminary declarations of disclosure or they are confident with their
settlement, have little to disclose and/or are not good with paperwork. This further burdens an
already burdened Facilitator’s office.
The Solution: This resolution makes an exchange of preliminary declarations of disclosure
optional.
IMPACT STATEMENT
This proposed resolution does not affect any other law, statute or rule.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT:
Jeffrey Lacy, 900 Pier View Way, Oceanside, CA, 92054; telephone (760) 722-1234, email
jeffrey.lacy@glkohlaw.com
RESPONSIBLE FLOOR DELEGATE: Jeffrey Lacy, Esq.
RESOLUTION 09-08-2015
DIGEST
Family Law: Require family law findings of child abuse/neglect be entered into CACI
Amend Family Code section 3027 to require family courts to notify their local child welfare
agency when the court has substantiated allegations of child abuse and/or neglect, after an
evidentiary hearing, and (2) require the child welfare agency to refer the case to the DOJ for
entry into CACI.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend Family Code section 3027 and Penal Code section 11169.to read as follows:
§3027
(a) If allegations of child abuse, including child sexual abuse, are made during a child
custody proceeding and the court has concerns regarding the child's safety, the court may take
any reasonable, temporary steps as the court, in its discretion, deems appropriate under the
circumstances to protect the child's safety until an investigation can be completed. Nothing in
this section shall affect the applicability of Section 16504 or 16506 of the Welfare and
Institutions Code.
(b) If allegations of child abuse, including child sexual abuse, are made during a child
custody proceeding, the court may request that the local child welfare services agency conduct
an investigation of the allegations pursuant to Section 328 of the Welfare and Institutions Code.
Upon completion of the investigation, the agency shall report its findings to the court.
(c) Family court judicial officers who make a finding of child abuse or neglect following
an evidentiary hearing shall refer that case to the local child welfare agency for entry into the
Child Abuse Central Index, pursuant to Penal Code section 11169.
§11169
(a) An agency specified in Section 11165.9 shall forward to the Department of Justice a
report in writing of every case it investigates of known or suspected child abuse or severe neglect
that is determined to be substantiated, and any case it is referred pursuant to Family Code section
3027(c), other than cases coming within subdivision (b) of Section 11165.2. An agency shall not
forward a report to the Department of Justice unless it has conducted an active investigation and
determined that the report is substantiated, as defined in Section 11165.12 or unless a Family
Court judicial officer has made a finding of child abuse or neglect. If a report has previously
been filed which subsequently proves to be not substantiated, the Department of Justice shall be
notified in writing of that fact and shall not retain the report. The reports required by this section
shall be in a form approved by the Department of Justice and may be sent by fax or electronic
transmission. An agency specified in Section 11165.9 receiving a written report from another
agency specified in Section 11165.9 shall not send that report to the Department of Justice.
(b) On and after January 1, 2012, a police department or sheriff's department specified in
Section 11165.9 shall no longer forward to the Department of Justice a report in writing of any
case it investigates of known or suspected child abuse or severe neglect.
(c) At the time an agency specified in Section 11165.9 forwards a report in writing to the
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Department of Justice pursuant to subdivision (a), the agency shall also notify in writing the
known or suspected child abuser that he or she has been reported to the Child Abuse Central
Index (CACI).The notice required by this section shall be in a form approved by the Department
of Justice. The requirements of this subdivision shall apply with respect to reports forwarded to
the department on or after the date on which this subdivision becomes operative.
(d) Subject to subdivision (e), any person who is listed on the CACI has the right to a
hearing before the agency that requested his or her inclusion in the CACI to challenge his or her
listing on the CACI. The hearing shall satisfy due process requirements. It is the intent of the
Legislature that the hearing provided for by this subdivision shall not be construed to be
inconsistent with hearing proceedings available to persons who have been listed on the CACI
prior to the enactment of the act that added this subdivision.
(e) A hearing requested pursuant to subdivision (d) shall be denied when a court of
competent jurisdiction has determined that suspected child abuse or neglect has occurred, or
when the allegation of child abuse or neglect resulting in the referral to the CACI is pending
before the court. A person who is listed on the CACI and has been denied a hearing pursuant to
this subdivision has a right to a hearing pursuant to subdivision (d) only if the court's jurisdiction
has terminated, the court has not made a finding concerning whether the suspected child abuse or
neglect was substantiated, and a hearing has not previously been provided to the listed person
pursuant to subdivision (d).
(f) Any person listed in the CACI who has reached 100 years of age shall have his or her
listing removed from the CACI.
(g) Any person listed in the CACI as of January 1, 2013, who was listed prior to reaching
18 years of age, and who is listed once in CACI with no subsequent listings, shall be removed
from the CACI 10 years from the date of the incident resulting in the CACI listing.
(h) If, after a hearing pursuant to subdivision (d) or a court proceeding described in
subdivision (e), it is determined the person' s CACI listing was based on a report that was not
substantiated, the agency shall notify the Department of Justice of that result and the department
shall remove that person's name from the CACI.
(I) Agencies, including police departments and sheriff's departments, shall retain child
abuse or neglect investigative reports that result or resulted in a report filed with the Department
of Justice pursuant to subdivision (a) for the same period of time that the information is required
to be maintained on the CACI pursuant to this section and subdivision (a) of Section 11170.
Nothing in this section precludes an agency from retaining the reports for a longer period of time
if required by law.
(j) The immunity provisions of Section 11172 shall not apply to the submission of a
report by an agency pursuant to this section. However, nothing in this section shall be construed
to alter or diminish any other immunity provisions of state or federal law.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: Sacramento County Bar Association
STATEMENT OF REASONS
The Problem: The current system only requires a social worker’s substantiated findings of child
abuse and/or neglect to be referred to the California State Department of Justice (DOJ) for entry
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into the Child Abuse Central Index (CACI) and does not permit a family law court judicial
officer’s findings substantiating abuse and/or neglect, after an evidentiary hearing, to be entered
into CACI.
DOJ maintains CACI to help track persons who have had findings of child abuse and/or neglect
made against them. CACI is used to assist law enforcement investigations and to screen
applicants for certain professional licenses, jobs, or child placements/adoptions. Perpetrators of
child abuse and/or neglect can only be referred to the DOJ for entry into CACI by local child
welfare agencies or law enforcement. However, when a family law judicial officer makes a
substantiated finding, after an evidentiary hearing with more restrictive evidentiary procedures,
there is no mandatory requirement that this information be reported to the DOJ for entry into
CACI.
This proposal does not place any burden on child welfare services other than filling out a one
page form, i.e. form BCIA 8583. It is imperative that the individuals reviewing this legislation
realize that there would be no further need for an investigation of the abuse and/or neglect, as by
the time the local child welfare agency receives this referral from the family court judicial officer
the findings have already been substantiated under a greater scrutiny in family law courts.
This proposal also as currently authored includes a retroactivity provision that does not put the
onus on the courts to locate all prior substantiated cases, however, if there is a more recent case
that has been substantiated within the last five years, with a noticed motion by a parent or
guardian, the Court shall then refer the finding to Child Welfare Services for entry into CACI.
This proposal does not interfere with superiority of jurisdiction since by the time a family law
court substantiates a finding of child abuse and/or neglect, child welfare services has either opted
to not file a dependency petition and/or has determined said allegations to be inconclusive and/or
unfounded.
This proposal further does not place judicial officers in the position of being mandated reporters.
A mandated reporter is required to report any known or suspected instances of child abuse and/or
neglect to the county Child Welfare Services or to local law enforcement for the purposes of
investigation. Here, a judicial officer has already determined that the abuse took place and is
simply required to refer the finding for entry into CACI not another investigation.
The Solution: This proposal would (1) amend Family Code section 3027 to require family courts
to notify their local child welfare agency when the court has substantiated allegations of child
abuse and/or neglect, after an evidentiary hearing, and (2) require the child welfare agency to
refer the case to the DOJ for entry into CACI.
IMPACT STATEMENT
This resolution does not affect any other law, statute or rule not mentioned herein.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
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AUTHOR AND/OR PERMANENT CONTACT: Tiffany L. Andrews, CWLS, 6611 Folsom
Auburn Rd., Suite H, Folsom CA 95630, voice (707) 592-9603 or (916) 790-8440, fax (916)
988-8440, email tandrews@tlalawoffice.com
RESPONSIBLE FLOOR DELEGATE: Tiffany L. Andrews
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RESOLUTION 09-09-2015
DIGEST
This resolution would modify Family Code section 215 to clarify that motions filed after a
bifurcated judgment of dissolution should be served to counsel of record and not to the party
directly.
TEXT OF RESOLUTION
RESOLVED that the Conference of California Bar Association recommends that legislation be
sponsored to amend California Family Code section 215 to read as follows:
§215
(a) Except as provided in subdivisions (b) and (c), after entry of a judgment of dissolution
of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent
order in any other proceeding in which there was at issue the visitation, custody, or support of a
child, no modification of the judgment or order, and no subsequent order in the proceedings, is
valid unless any prior notice otherwise required to be given to a party to the proceeding is served,
in the same manner as the notice is otherwise permitted by law to be served, upon the party. For
the purposes of this section, service upon the attorney of record is not sufficient.
(b) A postjudgment motion to modify a custody, visitation, or child support order may be
served on the other party or parties by first-class mail or airmail, postage prepaid, to the persons
to be served. For any party served by mail, the proof of service must include an address
verification.
(c) This section does not apply to a bifurcated judgment of dissolution under Family
Code section 2337.
(Proposed new language underlined; language to be deleted stricken)
PROPONENT: The Bar Association of San Francisco
STATEMENT OF REASONS
The Problem: Family courts have interpreted section 215 to require service to a party and not his
or her attorney when a case has been bifurcated and an early judgment of dissolution entered,
reserving jurisdiction over the other issues presented in the case. This is because the technical
reading of section 215 requires that. However, a bifurcated judgment of dissolution resolves just
one aspect of the case, and the matter still must proceed to a final judgment on all issues
(property, support, custody, etc.).
A technical reading of Family Code section 215 leads to unintended results which create
complications for litigants.
The Solution: This resolution clarifies that the provisions of Family Code section 215 do not
apply to bifurcated judgments.
IMPACT STATEMENT
This resolution does not affect any other statute, rule or law.
CURRENT OR PRIOR RELATED LEGISLATION
Not known.
AUTHOR AND/OR PERMANENT CONTACT: Michelene Insalaco, 101 Spear Street, Suite
1640, San Francisco CA 94105, (415) 357-5050, MI@Sucherman-Insalaco.com
RESPONSIBLE FLOOR DELEGATE: Michelene Insalaco