New California Family Law Statutes For 2019
In its 2018 legislative session, the California State Legislature enacted the following statutes, which were signed by the Governor. 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 address any statutes governing juvenile law or cases under the Uniform Parentage Act.
SUBJECT MATTER: Child Abuse
CODE SECTION: Family Code §7823
CURRENT LAW: In order for a court to declare a minor child free from parental custody and control, it must first find that the child has been neglected or subjected to cruelty by the parent.
NEW LAW: A court’s finding that a parent has committed severe sexual abuse is prima facie evidence that the child has been neglected and treated with cruelty by the parent.
SUBJECT MATTER: Vocational Experts
CODE SECTION: Family Code §4311
CURRENT LAW: Where a spouse, who is requesting spousal support, is claiming that he/she cannot work, a vocational expert can be appointed to conduct a vocational evaluation.
NEW LAW: The vocational expert must have a master’s degree or another post-graduate degree in a relevant field.
SUBJECT MATTER: Interception of Insurance Proceeds to Satisfy Child Support Arrearage
CODE SECTION: Insurance Code §§13550 – 13555
CURRENT LAW: Various payments, such as income tax refunds, can be intercepted to satisfy child support arrearage.
NEW LAW: Proceeds from the payments of claims on insurance policies can be intercepted and applied to the payment of child support arrearage. However, this does not apply to certain types of insurance payoffs, such as payments to a home lender or lien holder. Fifty percent of any disability insurance payment is exempt from attachment.
SUBJECT MATTER: Termination of Child Support
CODE SECTION: Family Code §3901
CURRENT LAW: The obligation to support a minor child continues as to an unmarried child who has attained 18 years of age, is a full-time high school student, unless excused pursuant to paragraph (2), and who is not self-supporting, until the time the child completes the 12th grade or attains 19 years of age, whichever occurs first.
NEW LAW: A child is excused from the full-time student requirement if the child has a medically documented condition that prevents full-time school attendance.
SUBJECT MATTER: Domestic Violence and Child Custody
CODE SECTION: Family Code §3044
CURRENT LAW: In a child custody case, if a parent has committed an act of domestic violence against the minor child, the other children or the other parent, the Court has to presume that awarding custody to the offending parent would not be in the child’s best interests.
NEW LAW: The presumption is applicable where the offending parent has committed an act of domestic violence against his/her parent, spouse or significant other.
SUBJECT MATTER: Child Visitation Rights
CODE SECTION: Family Code §3100
CURRENT LAW: The Court is required to award reasonable visitation rights to the noncustodial parent, unless it is shown that such visitation rights would be detrimental to the child.
NEW LAW: The Court is required to award reasonable visitation rights if it is shown that the visitation would be in the best interest of the child.
COMMENT: This amendment appears to make it easier to deny visitation rights to the noncustodial parent. Previously, the custodial parent had the burden of proving the element of detriment to the child. Now, that parent only will have to prove that visitation would not be in the child’s best interests, which is a lower standard of proof.
SUBJECT MATTER: Compliance with Public Policy in Making Child Custody Awards
CODE SECTION: Family Code §3011
CURRENT LAW: The Court is required to consider specified factors, such as domestic violence and substance abuse, in awarding child custody.
NEW LAW: All child custody orders must be consistent with the state policy to ensure that the health, safety and welfare of children shall be the court’s primary concern in determining what is in the child’s best interests.
SUBJECT MATTER: Transmitting Restraining Order to the California Law Enforcement Telecommunications System (CLETS)
CODE SECTION: Family Code §6380
CURRENT LAW: Parties to a case in which protective orders have been requested occasionally prepare an agreed order that is not transmitted to the CLETS system.
NEW LAW: All protective orders must be transmitted to the CLETS system.
COMMENT: In some courts, it has become an accepted practice to draft protective orders in a form that cannot be submitted to the CLETS system. This has often been done where the restrained party’s job could be jeopardized if the protective order were recorded in CLETS. With this new legislation, that option has been eliminated.
SUBJECT MATTER: Notification of Mediation Confidentiality
CODE SECTION: Evidence Code §1129
CURRENT LAW: An attorney whose client is going to have his/her case mediated is not required to inform the client of the rules governing mediation confidentiality.
NEW LAW: Before the client commences mediation, the attorney is required to give the client a written statement explaining the confidential nature of the mediation process. In addition, the attorney is required to obtain the client’s written acknowledgment that he/she has been provided with this information.
COMMENT: The code section states that such lack of notice is not a basis to set aside a settlement agreement. Given this provision, the question inevitably arises of what, if any, consequences result if the notice is not given.
SUBJECT MATTER: Temporary Orders for the Custody of Pets
CODE SECTION: Family Code §2605
CURRENT LAW: A court does not have the power to make any orders regarding the custody of a pet. There were no specific provisions for awarding a pet to either party.
NEW LAW: During the pendency of a family law matter, the court can put temporary orders to require a party to care for a pet. When making its final decision regarding who is awarded a pet, the Court is to consider the care of the pet. The term “care” includes acts of harm or cruelty to the pet. The term “pet” refers to any animal that is kept as a household pet.
SUBJECT MATTER: Consideration of Domestic Violence in Making Spousal Support Orders – Part 1
CODE SECTION: Family Code §4320(i)
CURRENT LAW: In determining spousal support, the court is to consider acts of domestic violence committed by either party.
NEW LAW: In addition to existing enumerated factors, the court is to consider whether a protective order was previously issued and the court’s prior finding that a spouse committed domestic violence.
SUBJECT MATTER: Consideration of Domestic Violence in Making Spousal Support Orders – Part 2
CODE SECTION: Family Code §4324.5
CURRENT LAW: The court is required to make certain orders respecting spousal support in the event of a criminal conviction for a violent sexual felony.
NEW LAW: The enumerated orders are to be made where a spouse was convicted for a domestic violence felony. Attorney’s fees and costs are to be paid from the community property. The victimized spouse shall not be required to pay any attorney’s fees from his/her separate property.
COMMENT: Family Code §4325.5 says that the court cannot award spousal support to a spouse who has committed the referenced felonies. Moreover, the injured spouse is entitled to be awarded all of his/her retirement and pension benefits, without an offsetting award of community property to the perpetrating spouse.
SUBJECT MATTER: Consideration of Domestic Violence in Making Spousal Support Orders – Part 3
CODE SECTION: Family Code §4325
CURRENT LAW: The court is required to make certain orders respecting spousal support in the event of a misdemeanor criminal conviction for domestic violence. In the absence of evidence to the contrary, the court is to presume that the perpetrating spouse should not be awarded spousal support.
NEW LAW: In the absence of evidence to the contrary, the court must presume that no spousal support should be awarded to the convicted spouse. With regards to felonies, this is now applicable to misdemeanors. The court has the discretion to award the victimized spouse up to 100% of his/her pension or retirement benefits. Attorney’s fees and costs are to be paid from the community property. The victimized spouse shall not be required to pay any attorney’s fees from his/her separate property.