Attorney B. Stuart Walker
AB 939 will take effect on January 1, of 2011. It constitutes an effort by family law stake holders (judiciary, family law professionals, interested public, and legislators), to resolve two competing interests.
The primary interest, identified by California’s Supreme Court in the case, Elkins v. Superior Court, is that litigants, (especially self-represented litigants) should have their day in court. i.e. the court should hear the parties & witness testimony at the initial and subsequent Order to Show Cause hearings. These are the hearings that often have the practical effect of permanently determining the issues of child custody, support and the parties access to funds from which to pay an attorney. sharing the cost of attorney fees, for the rest of the case. Currently the courts rely on party and witness written declarations and to a greater or lesser extent prevent testimony of parties and witnesses.
The other, and in my opinion, equally important goal is that the parties family law issues are resolved expeditiously and efficiently. Because of the complex procedural requirements in California Family Law many case drag on for years. It is not unusual for parties to discover that the divorce that they believed was completed years ago, was in fact dismissed by the court for procedural defects.
Below are what I consider the significant changes to the California Family Code.
- The post judgment requirement for personal service of the opposing party when modifying custody, visitation or child support has been removed.
- Absent a showing of good cause or stipulation of the parties, the court must receive the testimony of parties and noticed witnesses.
- Upon a request for attorney fees the court is required to make a finding as to appropriateness, disparity in income, and ability to pay. Court Rule and form to be adopted by January 2012.
- The eligibility for parties to file for summary dissolution (divorce), rather than the normal divorce is changed from marriages lasting no longer than five years from the date of marriage to the date of filing to marriages lasting no longer than five years from the date of marriage to the date of separation. Other requirements, (e.g. no children, no real estate) remain unchanged.
- Allows the court to grant a summary dissolution after six months from the date of filing of the petition without an application from one of the parties. Parties retain right to revoke joint petition prior to grant of summary dissolution.
- Mandates that minor’s counsel present the child’s wishes to the court upon request of the child. Court and counsel must follow existing codified duties of minor’s counsel.
- Court may accept a stipulated judgment of Paternity in a protective (restraining) order proceeding.
- If there are orders for custody, visitation or support in the restraining order, those orders will survive the expiration of the restraining order.
- The court may refer all allegations of child abuse to the local child protection agency. Child welfare agency to make child records available to cognizant judges and attorneys in family and probate guardianship cases.