2015 Legislation Highlights: the Year in Review

• Jurisdiction: California,United States
• Citation: Vol. 38 No. 1
• Publication year: 2016
• topic: Family Law

2015 Legislation Highlights: The Year in Review

During the past year, significant legislation was enacted that affects family law. The continuing collaboration between Continuing Education of the Bar (CEB) and the Family Law Section continues to reap benefits for our members. The Family Law News is pleased to once again publish the CEB Year in Review. Each year, CEB publishes a detailed compilation of important case law and legislative developments on issues ranging from attorneys fees to child custody to enforcement.

Reprinted below for your review and easy reference are the key legislation during late 2014 and 2015. Except as indicated otherwise, all legislation discussed is operative January 1, 2016.

Due to space constraints, the Family Law News is unable to publish the list of new cases in this issue. The next issue of the Family Law News will include the CEB case summaries. In the meantime, please continue to take advantage of Judge Burke's case summaries that come through on a regular basis to keep fresh on legal developments coming from the courts. Thanks again to CEB for supporting the education of the Family Law Section.

Child Custody and Visitation

Custody Evaluations

S.B. 594, 2015-2016 Reg. Sess. (Ca. 2015) Stats. 2015, ch. 130

Legislation clarifies that when a court appoints a child custody evaluator under CAL. FAM. CODE § 3111 in a contested custody proceeding, the evaluation, investigation, or assessment, and any resulting report, may be considered by the court only if it is conducted in accordance with the Judicial Council standards adopted under CAL. FAM. CODE § 3117; but this does not preclude consideration of a custody evaluation report containing nonsubstantive or inconsequential errors (or both). The legislation (S.B. 594) amends CAL. FAM. CODE § 3111(a) and is operative January 1, 2016.

Under preexisting law, in any contested child custody or visitation proceeding, a court may appoint a child custody evaluator to conduct a custody evaluation if the court determines it is in the best interests of the child. The evaluation must be conducted in accordance with the standards adopted by the Judicial Council under CAL. FAM. CODE § 3117, and all other standards adopted by the Judicial Council regarding child custody evaluations. In addition, if directed by the court, the child custody evaluator must file a written confidential report on his or her evaluation. The statute further states simply that "the report may be considered by the court." CAL. FAM. CODE § 3111(a).

Senate Bill 594 clarifies that both a custody evaluation and report must meet the Judicial Council's standards, as follows (Cal. Fam. Code § 3111(a) (operative January 1, 2016)):

. . . 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 [CAL. FAM. CODE ] section 3117; however, this does not preclude consideration of a child custody evaluation report that contains nonsubstantive or inconsequential errors or both.

Reference: Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, §7.49 (Cal. CEB).

Testimony by Electronic Means

Assemb. B. 365, 2015-2016 Reg. Sess. (Ca. 2015) Stats. 2015, ch. 69

Legislation requires a court, on a party's motion, to allow that party to present testimony and evidence at a child custody proceeding (and participate in mandatory custody mediation) by electronic means if that party's deportation or detention by the federal Department of Homeland Security materially affects his or her ability to appear in person. The legislation (Assemb. B. 365) adds CAL. FAM. CODE § 3012 and is operative January 1, 2016.

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Under preexisting law, there are circumstances in which a court in child custody proceedings may allow a party to testify by electronic means. Cal. Fam. Code §§ 3047(c)(2) (military deployment, mobilization, or temporary duty materially affects party's ability to appear in person), section 3411(b) (court may allow out-of-state individual to be deposed or testify by electronic means).

Assembly Bill 365 now extends this testimonial ability to a party whose deportation or detention by the federal Department of Homeland Security materially affects that party's ability to appear in person at a child custody proceeding. New CAL. FAM. CODE § 3012(a) (operative January 1, 2016) provides:

If a party's deportation or detention by the United States Immigration and Customs Enforcement of the Department of Homeland Security will have a material effect on his or her ability, or anticipated ability, to appear in person at a child custody proceeding, the court shall, upon motion of the party, allow the party to present testimony and evidence and participate in mandatory child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or other electronic means that provide remote access to the hearing, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

However, Assemb. B. 365 "does not authorize the use of electronic recording for the purpose of taking the official record of these proceedings." Cal. Fam. Code § 3102(b) (operative January 1, 2016).

Reference: Practice Under the California Family Code: Dissolution, Legal Separation, Nullity §7.53A (Cal. CEB).

Child Support

Enforcement

Assemb. B. 610, 2015-2016 Reg. Sess (Ca. 2015) Stats. 2015, ch. 629

Urgency legislation repealed and added CAL. FAM. CODE § 4007.5 concerning the suspension of the payment of court-ordered child support while a support obligor is incarcerated or involuntarily institutionalized. The legislation (Assemb. B. 610) became operative October 8, 2015.

Preexisting law, until July 1, 2015, required the obligation of a person to pay child support under an order being enforced by a local child support agency under Title IV-D of the Social Security Act to be suspended for the time period exceeding 90 days in which the support obligor is incarcerated or involuntarily institutionalized, with specified exceptions. Prior law also required that on the obligor's release, the support obligation would immediately resume in the amount otherwise specified in the child support order before its suspension. Prior law also provided for notice to the parties and authorized an obligor, on release, to petition the court for an adjustment of the arrears resulting from the suspension of the support obligation.

Assembly Bill 610 enacts similar provisions, which became operative October 8, 2015. It applies to "every money judgment or child...