New California Family Law Statutes For 2023
©2022 by Glen L. Rabenn
In its 2021 – 2022 legislative session, the California State Legislature enacted the following statutes, which are relevant to family law actions in California. Please note that the following are very brief summaries of selected legislation. This summary is not intended to be a complete summary of all family law legislation. In addition, it is not intended as legal advice. You should consult with your own attorney to find out if a particular statute is relevant to your situation. Please further note that this post does not discuss statutes governing juvenile law or paternity cases under the Uniform Parentage Act.
SUBJECT MATTER: Mental Illness of Parent, Guardian or Relative
CODE SECTION(S) AFFECTED: Family Code §3040(d) (New)
PRIOR LAW: Family Code §3040 provided an order of preference for awards of child custody, according to the child’s best interests.
NEW LAW: If the Court finds that the mental health of a person (parent, legal guardian or relative) requesting custody of a minor child is a factor in its determination of child custody, the Court is required to provide that person with a list of local resources for mental health treatment. The Court is also required to state its findings, in writing, regarding the person’s mental health.
SUBJECT MATTER(S): Child Support Payable by Incarcerated Parent
CODE SECTION(S) AFFECTED: Family Code §§4007.5, 4054 and 4058(b)(3)
PRIOR LAW: Family Code §4007.5 provides that a money judgment for child support is suspended for any period exceeding 90 days when the obligor is involuntarily incarcerated or institutionalized. Family Code §4007.5 (a)(2) provided that the suspension did not apply if the support obligor was incarcerated for domestic violence. The terms “incarcerated or involuntarily institutionalized” included confinement in state facilities. The court had the power to impute income to an involuntarily incarcerated or institutionalized support obligor.
NEW LAW: The suspension commences on the first day of the first full month of incarceration. Family Code §4007.5 (a)(2) has been deleted, thus eliminating the exception of the suspension for obligors who have been incarcerated for domestic violence. The terms “incarcerated or involuntarily institutionalized” has been expanded to include confinement in a federal prison.
New Family Code §4058(b)(3) provides that the court cannot treat involuntary incarceration as voluntary unemployment in establishing or modifying child support orders.
SUBJECT MATTER(S): Child Support – Earning Capacity
CODE SECTION(S) AFFECTED: Family Code §4058(b)
PRIOR LAW: In determining child support, the court could consider the earning capacity of a parent, if that parent is unemployed or underemployed, consistent with the child’s best interests. In determining a parent’s earning capacity, the court was required to consider the overall welfare and developmental needs of the children in the time the parent spends with the children.
NEW LAW: The provisions of former Family Code §4058(b) are now found in Family Code §4058(b)(1).
New Family Code §4058(b)(2) provides court is also to consider the “specific circumstances of the parent. Those circumstances include the parent’s assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, record of seeking work, the local job market, availability of employers willing to hire parent, prevailing earning levels in the local community, and other relevant background factors affecting the parents ability to earn.
SUBJECT MATTER(S): Drivers License Suspensions
CODE SECTION(S) AFFECTED: Family Code §17520.5 (New)
PRIOR LAW: Family Code §17520.5 provides that local child support agencies are to submit lists of persons who are delinquent in the payment of child support to the Department of Child Support Services (“DCSS”). The Department and then compiles a master list which is submitted to specified state agencies, including the Department of Motor Vehicles. The DMV is then authorized to suspend the issuance or reissuance of driver’s licenses to persons on the list.
NEW LAW: The DCSS is not to the names of support obligors annual household income is at or below 70% of the median income for the county in which the obligor resides.
SUBJECT MATTER(S): Right of Survivorship
CODE SECTION(S) AFFECTED: Civil Code §682.1
PRIOR LAW: If a deed or other transfer document expressly declared the transferred property to be community property with right of survivorship, upon the death of one of the spouses, the property is to pass to the survivor, without administration,
NEW LAW: The rule now applies to pre-2001 community property transfers, even if the words “right of survivorship” do not appear. In such situations, a presumption arises that the transfer is subject to a right of survivorship, unless the parties have agreed otherwise or there is a contrary provision in the deceased spouse’s estate plan.
SUBJECT MATTER(S): Attendance at Oral Depositions
CODE SECTION(S) AFFECTED: Code of Civil Procedure §2025.310(b)
PRIOR LAW: A party or attorney of record may attend a deposition at the location of the deponent.
NEW LAW: If a party or attorney of record elects to attend a deposition at the location of the deponent, the party and attorney are required to comply with local health and safety ordinances, rules, and orders.
SUBJECT MATTER(S): Attorney Fees in Domestic Violence Actions
CODE SECTION(S) AFFECTED: Family Code §6334 (Old version repealed and replaced.)
PRIOR LAW: Previously, Family Code §6334 provided that the court could award attorney fees and costs to the prevailing party, regardless of whether it was the petitioner or the respondent.
That section further provided that, if the petitioner was the prevailing party and could not afford to pay his/her attorney fees and costs, the Court was required to award attorney fees and costs, based on the parties’ respective abilities to pay. In determining the abilities to pay, the court was to consider (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay. The statute had no specific provision for awarding attorney fees and costs, if the respondent was the prevailing party.
NEW LAW: The Court is now required to award attorney fees and costs to the prevailing petitioner.
In addition, after notice and a hearing, the court, upon request, the court may issue an order for the payment of attorney’s fees and costs for a prevailing respondent. However, such an order can be made only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.
In determining a request for attorney fees and costs, the court is required to determine if the party from whom fees and costs have been requested, has, or is reasonably likely to have, the ability to pay.
SUBJECT MATTER(S): Duration of Renewals of Domestic Violence Protective Orders
CODE SECTION(S) AFFECTED: Family Code §6345
A domestic violence protective order could be renewed, upon the request of a party,
either for five years, or permanently at the discretion of the court without a showing of further
abuse since the issuance of the original order.
NEW LAW: A domestic violence protective order can now be renewed, upon the request of a party, either for five years, or more, or permanently. (In other words, the court’s decision as to the duration of the renewal is no longer limited to five years or permanently.)
SUBJECT MATTER(S): Vexatious Litigant
CODE SECTION(S) AFFECTED: Code of Civil Procedure §391
PRIOR LAW: Part 3, Title 3A of the Code of Civil Procedure provides that a person can be declared a vexatious litigant. After the court makes such an order, it can place restrictions on the person’s ability to file legal actions in the Superior Court.
NEW LAW: Code of Civil Procedure §391(b)(5) has been added to provide that a person who is subject to a domestic violence protective order can be declared a vexatious litigant. The court can make such an order if it finds that the person has filed a lawsuit against the protected person, which is meritless and which has caused the protected person to be harassed or intimidated.