BILL NUMBER: AB 1058 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 13, 1996
AMENDED IN SENATE AUGUST 6, 1996
AMENDED IN SENATE JUNE 24, 1996
AMENDED IN SENATE JUNE 13, 1996
AMENDED IN ASSEMBLY JANUARY 23, 1996
AMENDED IN ASSEMBLY JANUARY 8, 1996
AMENDED IN ASSEMBLY APRIL 5, 1995
INTRODUCED BY Assembly Member Speier
FEBRUARY 23, 1995
An act to amend Sections 259 and 4506.3
Section 259 of, to add Chapter 9 (commencing with Section
689.010) to Division 1 of Title 9 of Part 2 of, and to repeal
Sections 639.5 and 640.1 of, the Code of Civil Procedure, to
amend Section 4506.3 of, to add Section 5246 to, to add Article
3 (commencing with Section 3680) to Chapter 6 of Part 1 of Division
9 of, to add Article 4 (commencing with Section 4250) to Chapter 2 of
Part 2 of Division 9 of, and to add Division 14 (commencing with
Section 10000) to, the Family Code, to amend Section 70141 of the
Government Code, to amend Sections 11350.1, 11475.1, and 11478.2 of,
and to add Sections 11350.7, 11354, 11355, and 11356 to, the Welfare
and Institutions Code, relating to family law.
LEGISLATIVE COUNSEL'S DIGEST
AB 1058, as amended, Speier. Family law: support.
(1) Existing law requires all applications filed by the district
attorney or by another party, as provided, for an order to establish
or enforce child support, including actions to establish paternity,
to be referred for hearing to a commissioner or a referee to the
extent required by federal law, except as provided.
This bill would repeal this provision and instead require all
actions filed by the district attorney or by another party, as
provided, for an order to establish, modify, or enforce child or
spousal support, including actions to establish paternity, to be
referred for hearing to a child support commissioner, except as
provided. The bill would require each superior court to provide
sufficient child support commissioners to hear these cases, as
specified, thereby imposing a state-mandated local program. The bill
would prescribe specified duties of the Judicial Council with regard
to child support commissioners.
(2) Existing law specifies procedures for the enforcement of money
judgments, including provisions for wage garnishment. Under the
Wage Garnishment Law, a withholding order for support has priority
over any other earnings withholding order.
This bill would enact special provisions for the enforcement of
support judgments, and would authorize the district attorney to use
any of the existing remedies available to a judgment creditor and to
act as a levying officer when enforcing a support obligation pursuant
to a writ of execution, as provided. The bill would authorize the
district attorney to issue a warrant to levy on and sell vehicles or
vessels, as defined, or aircraft, for the collection of support
arrearages, as specified.
(3) Existing law provides for the modification and termination of
support orders.
This bill would state the intent of the Legislature that the
Judicial Council adopt rules of court and forms for a simplified
method to modify support orders, for use by parents who are not
represented by counsel.
(4) Under existing law, when a court orders a party to pay an
amount for support or orders a modification of support, the court is
required to include in the order an earnings assignment order for
support that orders the employer of the obligor to pay to the obligee
a portion of future earnings.
This bill would provide that in cases in which support enforcement
services are being provided by the district attorney, and after a
court has ordered an earnings assignment for support, the district
attorney may serve on the employer a notice of assignment prescribed
by the Judicial Council, containing specified information, in lieu of
the earnings assignment order, in the manner specified. The bill
would impose a state-mandated local program by requiring new duties
of district attorneys and court clerks. The bill would require the
employer to deliver specified documents and information to the
obligor, and would specify procedures under which the obligor may
obtain a court hearing.
(5) Existing law specifies that the superior court has
jurisdiction in proceedings under the Family Code.
This bill would require each superior court to maintain an office
of the family law facilitator, to be staffed, at a minimum, by an
attorney. The family law facilitator would provide specified
services to parties at no cost, and to other entities, as provided.
The bill would require the Judicial Council to adopt minimum
standards for the office and to adopt any forms or rules of court
necessary to implement these provisions. The bill would require the
Director of the State Department of Social Services to seek federal
approval to utilize specified federal funds for the services of the
office, as provided. The bill would impose a state-mandated local
program by requiring new services by local officials.
(6) Under existing law, in any action brought by the district
attorney for the support of a minor child or children, the action may
be prosecuted in the name of the county on behalf of the child,
children, or parent, and the parent is not a necessary party to the
action. In such an action, joinder of actions, or coordination of
actions, or cross-complaints, are prohibited and the issues are
limited to the question of paternity and child support.
This bill would provide that after a support order has been
entered in such an action, the parent who has requested or is
receiving support enforcement services of the district attorney shall
become a party to the action for the purposes of child support,
custody, and visitation, and restraining orders, as provided, and
would make related changes. The bill would impose a state-mandated
local program by requiring the district attorney to provide specified
notice.
(7) Existing law requires the district attorney to establish,
modify, and enforce child support and, when appropriate, enforce
spousal support orders, and establish paternity in the case of a
child born out of wedlock, when the child is receiving public
assistance, and is authorized to take the same actions on behalf of a
child who is not receiving public assistance.
This bill would provide that in any action or proceeding brought
by the district attorney to establish parentage pursuant to the above
provision, the court shall enter a judgment establishing parentage
upon the filing of a written stipulation between the parties, as
provided.
(8) Existing law specifies the procedures under which judgment may
be had if the defendant fails to answer the complaint.
This bill would require the court to enter a judgment in any
support or paternity action filed by the district attorney pursuant
to specified provisions of law, if the defendant fails to file an
answer or otherwise appear in the action within 30 days of service of
process, as specified.
(9) Under existing law, the court may relieve a party or his or
her legal representative from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect, if application is made
within a reasonable time, in no case exceeding 6 months after the
action was taken.
This bill would provide that in any support or paternity action
filed by the district attorney pursuant to specified provisions of
law, the court may relieve the defendant from that part of the
judgment or order concerning the amount of child support to be paid,
after the 6-month time limit described above has elapsed, if the
judgment or order was based upon presumed income as described in (10)
below and was entered after the entry of the default of the
defendant, as specified.
(10) Existing law requires the Judicial Council, in consultation
with certain organizations, to develop simplified complaint and
answer forms for any action for support brought by the district
attorney, as specified. Under existing law, the simplified complaint
form is required to provide the defendant with notice of the amount
of child support that is sought by stating the possible amount of an
order in terms of a percentage of the defendant's income for the
number of children specified in the order.
This bill would require the Judicial Council to develop simplified
summons, complaint, and answer forms and would delete reference to
the organizations the Judicial Council is required to consult with
regarding development of the simplified forms. The bill would revise
the latter provision described above to instead require the
simplified complaint form to provide the defendant with notice of the
amount of child support that is sought based upon the income or
income history of the defendant as known to the district attorney.
The bill would provide that if the defendant's income or income
history is unknown to the district attorney, the simplified complaint
shall inform the defendant that income shall be presumed, as
provided. The bill would make related and conforming changes.
(11) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 259 of the Code of Civil Procedure is amended
to read:
259. Subject to the supervision of the court, every court
commissioner shall have power to do all of the following:
(a) Hear and determine ex parte motions for orders and alternative
writs and writs of habeas corpus in the superior court for which the
court commissioner is appointed.
(b) Take proof and make and report findings thereon as to any
matter of fact upon which information is required by the court. Any
party to any contested proceeding may except to the report and the
subsequent order of the court made thereon within five days after
written notice of the court's action. A copy of the exceptions shall
be filed and served upon opposing party or counsel within the five
days. The party may argue any exceptions before the court on giving
notice of motion for that purpose within 10 days from entry thereof.
After a hearing before the court on the exceptions, the court may
sustain, or set aside, or modify its order.
(c) Take and approve any bonds and undertakings in actions or
proceedings, and determine objections to the bonds and undertakings.
(d) Administer oaths and affirmations, and take affidavits and
depositions in any action or proceeding in any of the courts of this
state, or in any matter or proceeding whatever, and take
acknowledgments and proof of deeds, mortgages, and other instruments
requiring proof or acknowledgment for any purpose under the laws of
this or any other state or country.
(e) Act as temporary judge when otherwise qualified so to act and
when appointed for that purpose, or by written consent of an
appearing party. While acting as temporary judge the commissioner
shall receive no compensation therefor other than compensation as
commissioner.
(f) Hear and report findings and conclusions to the court for
approval, rejection, or change, all preliminary matters including
motions or petitions for the custody and support of children, the
allowance of temporary spousal support, costs and attorneys' fees,
and issues of fact in contempt proceedings in proceedings for
support, dissolution of marriage, nullity of marriage, or legal
separation.
(g) Hear actions to establish paternity and to establish or
enforce child and spousal support pursuant to subdivision (a) of
Section 4251 of the Family Code.
(h) Hear, report on, and determine all uncontested actions and
proceedings subject to the requirements of subdivision (e).
(i) Charge and collect the same fees for the performance of
official acts as are allowed by law to notaries public in this state
for like services. This subdivision does not apply to any services
of the commissioner, the compensation for which is expressly fixed by
law. The fees so collected shall be paid to the treasurer of the
county, for deposit in the general fund of the county.
(j) Provide an official seal, upon which must be engraved the
words "Court Commissioner" and the name of the county, or city and
county, in which the commissioner resides.
(k) Authenticate with the official seal the commissioner's
official acts.
SEC. 2. Section 639.5 of the Code of Civil Procedure is repealed.
SEC. 3. Section 640.1 of the Code of Civil Procedure is repealed.
SEC. 4. Chapter 9 (commencing with Section 689.010) is added to
Division 1 of Title 9 of Part 2 of the Code of Civil Procedure, to
read:
CHAPTER 9. ENFORCEMENT OF SUPPORT JUDGMENTS
689.010. For the purpose of the remedies provided under this
chapter, jurisdiction is conferred upon the superior court.
689.020. (a) Except as otherwise provided by statute, whenever a
warrant may properly be issued by the district attorney pursuant to
Section 11350.7 of the Welfare and Institutions Code, and the warrant
may be levied with the same effect as a levy pursuant to a writ of
execution, the district attorney may use any of the remedies
available to a judgment creditor, including, but not limited to,
those provided in Chapter 6 (commencing with Section 708.010) of
Division 2.
(b) The proper court for the enforcement of the remedies provided
under this chapter is the superior court in the county where the
district attorney enforcing the support obligation is located.
689.030. (a) Whenever the district attorney, pursuant to Section
11350.7 of the Welfare and Institutions Code, levies upon property
pursuant to a warrant for the collection of a support obligation:
(1) If the debtor is a natural person, the debtor is entitled to
the same exemptions to which a judgment debtor is entitled. Except
as provided in subdivisions (b) and (c), the claim of exemption shall
be made, heard, and determined as provided in Chapter 4 (commencing
with Section 703.010) of Division 2 in the same manner as if the
property were levied upon under a writ of execution.
(2) A third person may claim ownership or the right to possession
of the property or a security interest in or lien on the property.
Except as provided in subdivisions (b) and (c) or as otherwise
provided by statute, the third-party claim shall be made, heard, and
determined as provided in Division 4 (commencing with Section
720.010) in the same manner as if the property were levied upon under
a writ of execution.
(b) In the case of a warrant issued pursuant to Section 11350.7 of
the Welfare and Institutions Code, the claim of exemption or the
third-party claim shall be filed with the district attorney who
issued the warrant.
(c) A claim of exemption or a third-party claim pursuant to this
section shall be heard and determined in the court specified in
Section 689.010 in the county where the district attorney enforcing
the support obligation is located.
689.040. (a) Notwithstanding any other provision of law, in the
case of a writ of execution issued by a court of competent
jurisdiction pursuant to Chapter 3 (commencing with Section 699.010)
and Chapter 5 (commencing with Section 706.010) of Division 2, the
district attorney, when enforcing a support obligation pursuant to
Section 11475.1 of the Welfare and Institutions Code, may perform the
duties of the levying officer, except that the district attorney
need not give himself or herself the notices that the levying officer
is required to serve on a judgment creditor or creditor or the
notices that a judgment creditor or creditor is required to give to
the levying officer.
(b) Notwithstanding subdivision (a) of Section 700.140, if the
writ of execution is for a deposit or credits or personal property in
the possession or under the control of a bank or savings and loan
association, the district attorney may deliver or mail the writ of
execution to a centralized location designated by the bank or savings
and loan association. If the writ of execution is received at the
designated central location, it will apply to all deposits and
credits and personal property held by the bank or savings and loan
association regardless of the location of that property.
689.050. For the purpose of this chapter:
(a) "Judgment creditor" or "creditor" means the district attorney
seeking to collect a child or spousal support obligation pursuant to
a support order.
(b) "Judgment debtor" or "debtor" means the debtor from whom the
support obligation is sought to be collected.
SEC. 5. Article 3 (commencing with Section 3680) is added to
Chapter 6 of Part 1 of Division 9 of the Family Code, to read:
Article 3. Simplified Procedure for Modification of Support
Order
3680. (a) The Legislature finds and declares the following:
(1) There is currently no simple method available to parents to
quickly modify their support orders when circumstances warrant a
change in the amount of support.
(2) The lack of a simple method for parents to use to modify
support orders has led to orders in which the amount of support
ordered is inappropriate based on the parents' financial
circumstances.
(3) Parents should not have to incur significant costs or
experience significant delays in obtaining an appropriate support
order.
(b) Therefore, it is the intent of the Legislature that the
Judicial Council adopt rules of court and forms for a simplified
method to modify support orders. This simplified method should be
designed to be used by parents who are not represented by counsel.
SEC. 6. Article 4 (commencing with Section 4250) is added to
Chapter 2 of Part 2 of Division 9 of the Family Code, to read:
Article 4. Child Support Commissioners
4250. (a) The Legislature finds and declares the following:
(1) Child and spousal support are serious legal obligations.
(2) The current system for obtaining, modifying, and enforcing
child and spousal support orders is inadequate to meet the future
needs of California's children due to burgeoning caseloads within
district attorneys' offices and the growing number of parents who are
representing themselves in family law actions.
(3) The success of California's child support enforcement program
depends upon its ability to establish and enforce child support
orders quickly and efficiently.
(4) There is a compelling state interest in creating an expedited
process in the courts that is cost-effective and accessible to
families, for establishing and enforcing child support orders in
cases being enforced by the district attorney.
(5) There is a compelling state interest in having a simple,
speedy, conflict-reducing system, that is both cost-effective and
accessible to families, for resolving all issues concerning children,
including support, health insurance, custody, and visitation in
family law cases that do not involve enforcement by the district
attorney.
(b) Therefore, it is the intent of the Legislature to: (1)
provide for commissioners to hear child support cases being enforced
by the district attorney; (2) adopt uniform and simplified procedures
for all child support cases; and (3) create an Office of the Family
Law Facilitator in the courts to provide education, information, and
assistance to parents with child support issues.
4251. (a) Commencing July 1, 1997, each superior court shall
provide sufficient commissioners to hear Title IV-D child support
cases filed by the district attorney. The number of child support
commissioners required in each county shall be determined by the
Judicial Council as prescribed by paragraph (3) of subdivision (b) of
Section 4252. All actions or proceedings filed by the district
attorney, or by any other party in a support action or proceeding in
which enforcement services are being provided by the district
attorney pursuant to Section 11475.1 of the Welfare and Institutions
Code, for an order to establish, modify, or enforce child or spousal
support, including actions to establish paternity, shall be referred
for hearing to a child support commissioner unless a child support
commissioner is not available due to exceptional circumstances, as
prescribed by the Judicial Council pursuant to paragraph (7) of
subdivision (b) of Section 4252.
(b) The commissioner shall act as a temporary judge unless an
objection is made by the district attorney or any other party. The
Judicial Council shall develop a notice which shall be included on
all forms and pleadings used to initiate a child support action or
proceeding that advises the parties of their right to review by a
superior court judge and how to exercise that right. The parties
shall also be advised by the court prior to the commencement of the
hearing that the matter is being heard by a commissioner who shall
act as a temporary judge unless any party objects to the commissioner
acting as a temporary judge. While acting as a temporary judge, the
commissioner shall receive no compensation other than compensation
as a commissioner.
(c) If any party objects to the commissioner acting as a temporary
judge, the commissioner may hear the matter and make findings of
fact and a recommended order. Within 10 court days, a judge shall
ratify the recommended order unless either party objects to the
recommended order, or where a recommended order is in error. In both
cases, the judge shall issue a temporary order and schedule a
hearing de novo within 10 court days. Any party may waive his or her
right to the review hearing at any time.
(d) The commissioner shall, where appropriate, do any of the
following:
(1) Review and determine ex parte applications for orders and
writs.
(2) Take testimony.
(3) Establish a record, evaluate evidence, and make
recommendations or decisions.
(4) Enter judgments or orders based upon voluntary acknowledgments
of support liability and parentage and stipulated agreements
respecting the amount of child support to be paid.
(5) Enter default orders and judgments pursuant to Section 4253.
(6) In actions in which paternity is at issue, order the mother,
child, and alleged father to submit to genetic tests.
(e) The commissioner shall, upon application of any party, join
issues concerning custody, visitation, and protective orders in the
action filed by the district attorney, subject to Section 11350.1 of
the Welfare and Institutions Code. After joinder, the commissioner
shall:
(1) Refer the parents for mediation of disputed custody or
visitation issues pursuant to Section 3170 of the Family Code.
(2) Accept stipulated agreements concerning custody, visitation,
and protective orders and enter orders pursuant to the agreements.
(3) Refer contested issues of custody, visitation, and protective
orders to a judge or to another commissioner for hearing. A child
support commissioner may hear contested custody, visitation, and
restraining order issues only if the court has adopted procedures to
segregate the costs of hearing Title IV-D child support issues from
the costs of hearing other issues pursuant to applicable federal
requirements.
(f) The district attorney shall be served notice by the moving
party of any proceeding under this section in which support is at
issue. Any order for support that is entered without the district
attorney having received proper notice shall be voidable upon the
motion of the district attorney.
4252. (a) One or more child support commissioners shall be
appointed by the superior court to perform the duties specified in
Section 4251. The child support commissioners first priority always
shall be to hear Title IV-D child support cases. The child support
commissioners shall specialize in hearing child support cases, and
their primary responsibility shall be to hear Title IV-D child
support cases. Child support commissioner positions shall not be
subject to the limitation on other commissioner positions imposed
upon the counties by Article 13 (commencing with Section 70140) of
Chapter 5 of Title 8 of the Government Code. The number of child
support commissioner positions allotted to each superior court shall
be determined by the Judicial Council in accordance with caseload
standards developed pursuant to paragraph (3) of subdivision (b),
subject to appropriations in the annual Budget Act.
(b) The Judicial Council shall do all of the following:
(1) Establish minimum qualifications for child support
commissioners.
(2) Establish minimum educational and training requirements for
child support commissioners and other court personnel that are
assigned to Title IV-D child support cases. Training programs shall
include both federal and state laws concerning child support, and
related issues.
(3) Establish caseload, case processing, and staffing standards
for child support commissioners on or before April 1, 1997, which
shall set forth the maximum number of cases that each child support
commissioner can process. These standards shall be reviewed and, if
appropriate, revised by the Judicial Council every two years.
(4) Adopt uniform rules of court and forms for use in Title IV-D
child support cases.
(5) Offer technical assistance to counties regarding issues
relating to implementation and operation of the child support
commissioner system, including assistance related to funding,
staffing, and the sharing of resources between counties.
(6) Establish procedures for the distribution of funding to the
courts for child support commissioners, family law facilitators
pursuant to Division 14 (commencing with Section 10000) and related
allowable costs.
(7) Adopt rules that define the exceptional circumstances in which
judges may hear Title IV-D child support matters as provided in
subdivision (a) of Section 4251.
(8) Undertake other actions as appropriate to ensure the
successful implementation and operation of child support
commissioners in the counties.
4253. Notwithstanding any other provision of law, when hearing
child support matters, a commissioner or referee may enter default
orders if the defendant does not respond to notice or other process
within the time prescribed to respond to that notice.
SEC. 7. Section 4506.3 of the Family Code is amended to read:
4506.3. The Judicial Council, in consultation with the California
Family Support Council, the State Department of Social Services, and
title insurance industry representatives, shall develop a single
form, which conforms with the requirements of Section 27361.6 of the
Government Code, for the substitution of payee, for notice directing
payment of support to the district attorney pursuant to Sections 4200
and 4201, and for notice that support has been assigned pursuant to
Section 11477 of the Welfare and Institutions Code.
SEC. 8. Section 5246 is added to the Family Code, to read:
5246. (a) This section applies only to Title IV-D cases where
support enforcement services are being provided by the district
attorney pursuant to Section 11475.1 of the Welfare and Institutions
Code.
(b) After the court has ordered an earnings assignment for support
pursuant to Section 5230 or 5253, the district attorney may serve on
the employer a notice of assignment in lieu of the earnings
assignment order in the manner specified in Section 5232.
(c) The notice of assignment shall contain, at a minimum, the
following information:
(1) The amount of current support ordered by the court.
(2) Any additional amount to be withheld and applied to
arrearages.
(3) The date of the most recent support order.
(4) The name and address of the district attorney to whom the
support is to be paid.
(5) The amount of arrearages and the date through which the
arrearages have been calculated, and a statement as to whether or not
the arrearages include interest.
(6) Instructions to the employer on how to comply with the
earnings assignment order.
(7) A written statement of the obligor's rights under the law to
seek to quash or modify the earnings assignment order, together with
a blank form which the obligor can file with the court to request a
hearing to modify or quash the assignment with instructions on how to
file the form and obtain a hearing date.
(d) If the underlying court order for support does not provide for
an arrearage payment, or if an additional arrearage accrues after
the date of the court order for support, the district attorney may
send a notice of assignment directly to the employer which specifies
the updated arrearage amount and directs the employer to withhold an
additional amount not to exceed 3 percent of the arrearage or fifty
dollars ($50), whichever is greater, to be applied towards
liquidation of the arrearages.
(e) Within 10 days of service of the notice of assignment, the
employer shall deliver both of the following to the obligor:
(1) A copy of the notice of assignment.
(2) The form to request a hearing described in paragraph (7) of
subdivision (c).
(f) If the obligor requests a hearing, a hearing date shall be
scheduled within 20 days of the filing of the request with the court.
The clerk of the court shall provide notice of the hearing to the
district attorney and the obligor no later than 10 days prior to the
hearing.
(1) If at the hearing the obligor establishes that he or she is
not the obligor or good cause or an alternative arrangement as
provided in Section 5260, the court may order that service of the
earnings assignment order be quashed. If the court quashes service
of the earnings assignment order, the district attorney shall notify
the employer within 10 days.
(2) If the obligor contends at the hearing that the payment of
arrearages at the rate specified in this section is excessive or that
the total arrearages owing is incorrect, and if it is determined
that payment of the arrearages at the rate specified in this section
creates an undue hardship upon the obligor or that the withholding
would exceed the maximum amount permitted by Section 1673(b) of Title
15 of the United States Code Annotated, the rate at which the
arrearages must be paid shall be reduced to a rate that is fair and
reasonable considering the circumstances of the parties and the best
interest of the child. If it is determined at a hearing that the
total amount of arrearages calculated is erroneous, the court shall
modify the amount calculated to the correct amount. If the court
modifies the total amount of arrearages owed or reduces the monthly
payment due on the arrearages, the district attorney shall serve the
employer with an amended notice of assignment within 10 days.
(g) If an obligor's current support obligation has terminated by
operation of law, the district attorney may serve a notice of
assignment on the employer which directs the employer to continue
withholding from the obligor's earnings an amount not to exceed the
current support order that was in effect or 3 percent of the total
support arrearages including interest, whichever is greater, until
such time that the employer is notified by the district attorney that
the arrearages have been paid in full. The employer shall provide
the obligor with the same documents as provided in subdivision (e).
The obligor shall be entitled to the same rights to a hearing as
specified in subdivision (f).
(h) The district attorney shall retain a copy of the notice of
assignment and shall file a copy with the court whenever a hearing
concerning the notice of assignment is requested.
(i) Nothing in this section prohibits the district attorney from
seeking a payment on arrearages which is greater than the amount
specified in this section. The district attorney may seek a higher
payment on arrearages by filing an ex parte motion with the court.
SEC. 9. Division 14 (commencing with Section 10000) is added to
the Family Code, to read:
DIVISION 14. FAMILY LAW FACILITATOR ACT
10000. This division shall be known and may be cited as the
Family Law Facilitator Act.
10001. (a) The Legislature finds and declares the following:
(1) Child and spousal support are serious legal obligations. The
entry of a child support order is frequently delayed while parents
engage in protracted litigation concerning custody and visitation.
The current system for obtaining child and spousal support orders is
suffering because the family courts are unduly burdened with heavy
case loads and do not have sufficient personnel to meet increased
demands on the courts.
(2) Reports to the Legislature regarding the family law pilot
projects in the Superior Courts of the Counties of Santa Clara and
San Mateo indicate that the pilot projects have provided a
cost-effective and efficient method for the courts to process family
law cases that involve unrepresented litigants with issues concerning
child support, spousal support, and health insurance.
(3) The reports to the Legislature further indicate that the pilot
projects in both counties have been successful in making the process
of obtaining court orders concerning child support, spousal support,
and health insurance more accessible to unrepresented parties.
Surveys conducted by both counties indicate a high degree of
satisfaction with the services provided by the pilot projects.
(4) There is a compelling state interest in having a speedy,
conflict-reducing system for resolving issues of child support,
spousal support, and health insurance that is cost-effective and
accessible to families that cannot afford legal representation.
(b) Therefore, it is the intent of the Legislature to make the
services provided in the family law pilot projects in the Counties of
Santa Clara and San Mateo available to unrepresented parties in the
superior courts of all California counties.
10002. Each superior court shall maintain an office of the family
law facilitator. The office of the family law facilitator shall be
staffed by an attorney licensed to practice law in this state who has
mediation or litigation experience, or both, in the field of family
law. The family law facilitator shall be appointed by the superior
court.
10003. This division shall apply to all actions or proceedings
for temporary or permanent child support, spousal support, or health
insurance in a proceeding for dissolution of marriage, nullity of
marriage, legal separation, or exclusive child custody, or pursuant
to the Uniform Parentage Act (Part 3 (commencing with Section 7600)
of Division 12) or the Domestic Violence Prevention Act (Division 10
(commencing with Section 6200)).
10004. Services provided by the family law facilitator shall
include, but are not limited to, the following: providing
educational materials to parents concerning the process of
establishing parentage and establishing, modifying, and enforcing
child and spousal support in the courts; distributing necessary court
forms and voluntary declarations of paternity; providing assistance
in completing forms; preparing support schedules based upon statutory
guidelines; and providing referrals to the district attorney, family
court services, and other community agencies and resources that
provide services for parents and children.
10005. (a) By local rule, the superior court may designate
additional duties of the family law facilitator, which may include,
but are not limited to, the following:
(1) Meeting with litigants to mediate issues of child support,
spousal support, and maintenance of health insurance, subject to
Section 10012. Actions in which one or both of the parties are
unrepresented by counsel shall have priority.
(2) Drafting stipulations to include all issues agreed to by the
parties, which may include issues other than those specified in
Section 10003.
(3) If the parties are unable to resolve issues with the
assistance of the family law facilitator, prior to or at the hearing,
and at the request of the court, the family
law facilitator shall review the paperwork,
examine documents, prepare support schedules, and advise the judge
whether or not the matter is ready to proceed.
(4) Assisting the clerk in maintaining records.
(5) Preparing formal orders consistent with the court's announced
order in cases where both parties are unrepresented.
(6) Serving as a special master in proceedings and making findings
to the court unless he or she has served as a mediator in that case.
(b) If staff and other resources are available and the duties
listed in subdivision (a) have been accomplished, the duties of the
family law facilitator may also include the following:
(1) Assisting the court with research and any other
responsibilities which will enable the court to be responsive to the
litigants' needs.
(2) Developing programs for bar and community outreach through day
and evening programs, videotapes, and other innovative means that
will assist unrepresented and financially disadvantaged litigants in
gaining meaningful access to family court. These programs shall
specifically include information concerning underutilized
legislation, such as expedited child support orders (Chapter 5
(commencing with Section 3620) of Part 1 of Division 9), and
preexisting, court-sponsored programs, such as supervised visitation
and appointment of attorneys for children.
10006. The court shall adopt a protocol wherein all litigants,
both unrepresented by counsel and represented by counsel, have
ultimate access to a hearing before the court.
10007. The court shall provide the family law facilitator at no
cost to the parties.
10008. (a) Except as provided in subdivision (b), nothing in this
chapter shall be construed to apply to a child for whom services are
provided or required to be provided by a district attorney pursuant
to Section 11475.1 of the Welfare and Institutions Code.
(b) In cases in which the services of the district attorney are
provided pursuant to Section 11475.1 of the Welfare and Institutions
Code, either parent may utilize the services of the family law
facilitator that are specified in Section 10004. In order for a
custodial parent who is receiving the services of the district
attorney pursuant to Section 11475.1 of the Welfare and Institutions
Code to utilize the services specified in Section 10005 relating to
support, the custodial parent must obtain written authorization from
the district attorney. It is not the intent of the Legislature in
enacting this section to limit the duties of district attorneys with
respect to seeking child support payments or to in any way limit or
supersede other provisions of this code respecting temporary child
support.
10010. The Judicial Council shall adopt minimum standards for the
office of the family law facilitator and any forms or rules of court
that are necessary to implement this division.
10011. The Director of the State Department of Social Services
shall seek approval from the United States Department of Health and
Human Services, Office of Child Support Enforcement, to utilize
funding under Title IV-D of the Social Security Act for the services
provided pursuant to this division.
10012. (a) In a proceeding in which mediation is required
pursuant to paragraph (1) of subdivision (a) of Section 10005, where
there has been a history of domestic violence between the parties or
where a protective order as defined in Section 6218 is in effect, at
the request of the party alleging domestic violence in a written
declaration under penalty of perjury or protected by the order, the
family law facilitator shall meet with the parties separately and at
separate times.
(b) Any intake form that the office of the family law facilitator
requires the parties to complete before the commencement of mediation
shall state that, if a party alleging domestic violence in a written
declaration under penalty of perjury or a party protected by a
protective order so requests, the mediator will meet with the parties
separately and at separate times.
SEC. 10. Section 70141 of the Government Code is amended to read:
70141. (a) To assist the court in disposing of its business
connected with the administration of justice, the superior court of
any city and county may appoint not exceeding 10 commissioners, and
the superior court of every county, except a county with a population
of 4,000,000 or over, may appoint one commissioner. Each person so
appointed shall be designated as "court commissioner" of the county.
(b) In addition to the court commissioners authorized by
subdivision (a) or any other provision of law, either the superior
court or the municipal court, but not both, of any county or city and
county may appoint one additional commissioner, at the same rate of
compensation as the other commissioner or commissioners for that
court, upon adoption of a resolution by the board of supervisors
pursuant to subdivision (c).
(c) The county or city and county shall be bound by, and the
resolution adopted by the board of supervisors shall specifically
recognize, the following conditions:
(1) The county or city and county has sufficient funds for the
support of the position and any staff who will provide direct support
to the position, agrees to assume any and all additional costs that
may result therefrom, and agrees that no state funds shall be made
available, or shall be used, in support of this position or any staff
who provide direct support to this position.
(2) The additional commissioner shall not be deemed a judicial
position for purposes of calculating trial court funding pursuant to
Section 77202.
(3) The salary for this position and for any staff who provide
direct support to this position shall not be considered as part of
court operations for purposes of Sections 77003 and 77204.
(4) The county or city and county agrees not to seek funding from
the state for payment of the salary, benefits, or other compensation
for such a commissioner or for any staff who provide direct support
to such a commissioner.
(d) The court may provide that the additional commissioner may
perform all duties authorized for a commissioner of that court in the
county. In a county or city and county that has undertaken a
consolidation of the trial courts, the additional commissioner shall
be appointed by the superior, municipal, or justice courts pursuant
to the consolidation agreement.
(e) In addition to the court commissioners authorized by
subdivisions (a) and (b), the superior court of any county or city
and county shall appoint additional commissioners pursuant to
Sections 4251 and 4252 of the Family Code. These commissioners
shall receive a salary equal to 85 percent of a superior court judge'
s salary. These commissioners shall not be deemed a court
operation for purposes of Section 77003.
SEC. 11. Section 11350.1 of the Welfare and Institutions Code is
amended to read:
11350.1. (a) Notwithstanding any other statute, in any action
brought by the district attorney for the support of a minor child or
children, the action may be prosecuted in the name of the county on
behalf of the child, children, or a parent of the child or children.
The parent who has requested or is receiving support enforcement
services of the district attorney shall not be a necessary party to
the action but may be subpoenaed as a witness. Except as provided in
subdivision (e), in an action under this section there shall be no
joinder of actions, or coordination of actions, or cross-complaints,
and the issues shall be limited strictly to the question of
parentage, if applicable, and child support, including an order for
medical support. A final determination of parentage may be made in
any action under this section as an incident to obtaining an order
for support. An action for support or parentage pursuant to this
section shall not be delayed or stayed because of the pendency of any
other action between the parties.
(b) Judgment in an action brought pursuant to this section, and in
an action brought pursuant to Section 11350, if at issue, may be
rendered pursuant to a noticed motion, which shall inform the
defendant that in order to exercise his or her right to trial, he or
she must appear at the hearing on the motion.
If the defendant appears at the hearing on the motion, the court
shall inquire of him or her if he or she desires to subpoena evidence
and witnesses, if parentage is at issue and genetic tests have not
already been conducted whether he or she desires blood tests, and if
he or she desires a trial. If his or her answer is in the
affirmative, a continuance shall be granted to allow him or her to
exercise those rights. A continuance shall not postpone the hearing
to more than 90 days from the date of service of the motion. In the
event that a continuance is granted, the court may make an order for
temporary support without prejudice to the right of the court to make
an order for temporary support as otherwise allowed by law.
(c) In any action to enforce a spousal support order the action
may be pled in the name of the county in the same manner as an action
to establish a child support obligation. The same restrictions on
joinder of actions, coordination of actions, and cross-complaints,
and delay because of the pendency of any other action as relates to
actions to establish a child support obligation shall also apply to
actions to enforce a spousal support order.
(d) Nothing contained in this section shall be construed to
prevent the parties from bringing an independent action under the
Family Code or otherwise, and litigating the issue of support. In
that event, the court in those proceedings shall make an independent
determination on the issue of support which shall supersede the
support order made pursuant to this section.
(e) (1) After a support order, including a temporary support order
and an order for medical support only, has been entered in an action
brought pursuant to this section, the parent who has requested or is
receiving support enforcement services of the district attorney
shall become a party to the action brought pursuant to this section,
only in the manner and to the extent provided by this section, and
only for the purposes allowed by this section.
(2) Notice of the parent's status as a party shall be given to the
parent by the district attorney in conjunction with the notice
required by subdivision (e) of Section 11478.2. The complaint shall
contain this notice. Service of the complaint on the parent in
compliance with Section 1013 of the Code of Civil Procedure, or as
otherwise provided by law, shall constitute compliance with this
section.
(3) The parent who has requested or is receiving support
enforcement services of the district attorney is a party to an action
brought under this section for issues relating to the support,
custody, and visitation of a child, and for restraining orders, and
for no other purpose. The district attorney shall not be required to
serve or receive service of papers, pleadings, or documents, or
participate in, or attend any hearing or proceeding relating to
issues of custody or visitation, except as otherwise required by law.
Orders concerning custody and visitation may be made in an action
pursuant to this subdivision only if orders concerning custody and
visitation have not been previously made by a court of competent
jurisdiction in this state or another state and the court has
jurisdiction and is the proper venue for custody and visitation
determinations. All issues regarding custody and visitation shall be
heard and resolved in the manner provided by the Family Code.
Except as otherwise provided by law, the district attorney shall
control support and parentage litigation brought pursuant to this
section, and the manner, method, and procedures used in establishing
parentage and in establishing and enforcing support obligations
unless and until the parent who requested or is receiving support
enforcement services has requested in writing that the district
attorney close his or her case and the case has been closed in
accordance with federal regulation.
(f) (1) A parent who has requested or is receiving support
enforcement services of the district attorney may take independent
action to modify a support order made pursuant to this section while
support enforcement services are being provided by the district
attorney. The parent shall serve the district attorney with notice
of any action filed to modify the support order and provide the
district attorney with a copy of the modified order within 15
calendar days after the date the order is issued.
(2) A parent who has requested or is receiving support enforcement
services of the district attorney may take independent action to
enforce a support order made pursuant to this section while support
enforcement services are being provided by the district attorney with
the written consent of the district attorney. At least 30 days
prior to filing an independent enforcement action, the parent shall
provide the district attorney with written notice of the parent's
intent to file an enforcement action which includes a description of
the type of enforcement action the parent intends to file. Within 30
days of receiving the notice, the district attorney shall either
provide written consent for the parent to proceed with the
independent enforcement action or notify the parent that he or she
objects to the parent filing the proposed independent enforcement
action. The district attorney may object only if the district
attorney is currently using an administrative or judicial method to
enforce the support obligation or if the proposed independent
enforcement action would interfere with an investigation being
conducted by the district attorney. If the district attorney does
not respond to the parent's written notice within 30 days, the
district attorney shall be deemed to have given consent.
(3) The court shall order that all payments of support shall be
made to the district attorney in any action filed under this section
by the parent who has requested, or is receiving, support enforcement
services of the district attorney unless support enforcement
services have been terminated by the district attorney by case
closure as provided by federal law. Any order obtained by a parent
prior to support enforcement services being terminated in which the
district attorney did not receive proper notice pursuant to this
section shall be voidable upon the motion of the district attorney.
(g) The Judicial Council shall prepare the notice required by
subdivision (e).
SEC. 12. Section 11350.7 is added to the Welfare and Institutions
Code, to read:
11350.7. (a) Notwithstanding any other provision of law, if any
support obligor is delinquent in the payment of support for at least
30 days and the district attorney is enforcing the support obligation
pursuant to Section 11475.1, the district attorney may issue a
warrant for the collection of that support and may levy on and sell
vehicles and vessels as defined in the Vehicle Code, or aircraft.
(b) A warrant may be issued by a district attorney for a support
obligation which accrued under a court order or judgment if the
obligor had notice of the accrued support arrearage as provided in
this section, and did not make a timely request for review.
(c) The notice requirement shall be satisfied by the district
attorney sending a statement of support arrearages to the obligor at
the obligor's last known address by first-class mail, postage
prepaid. The notice shall advise the obligor of the amount of the
support arrearage. The notice shall advise the obligor that the
obligor may have the arrearage determination reviewed by
administrative procedures and state how such a review may be
obtained. The notice shall also advise the obligor of his or her
right to seek a judicial determination of arrearages pursuant to
Section 11350.8 and shall include a form to be filed with the court
to request a judicial determination of arrearages. If the obligor
requests an administrative review of the arrearage determination
within 20 days from the date the notice was mailed to the obligor,
the district attorney shall review the assessment or determination
and shall not issue the warrant for a disputed amount of support
until the administrative review procedure is completed.
(d) If the obligor requests a judicial determination of the
arrearages within 20 days from the date the notice was mailed to the
obligor, the district attorney shall not issue the warrant for a
disputed amount of support until the judicial determination is
complete.
(e) The warrant shall be directed to any sheriff, constable,
marshal, or the Department of the California Highway Patrol and shall
have the same force and effect as a writ of execution. The warrant
shall be levied and sale made pursuant to it in the manner and with
the same force and effect as a levy and sale pursuant to a writ of
execution. The district attorney may pay or advance to the levying
officer the same fees, commissions, and expenses for his or her
services under this section as are provided by law for similar
services pursuant to a writ of execution, except for those fees and
expenses for which the district attorney is exempt by law from
paying. The district attorney, and not the court, shall approve the
fees for publication in a newspaper.
(f) The fees, commissions, expenses, and the reasonable costs
associated with the sale of property levied upon by warrant pursuant
to this section, including, but not limited to, appraisers' fees,
auctioneers' fees, and advertising fees are an obligation of the
support obligor and may be collected from the obligor by virtue of
the warrant or in any other manner as though these items were support
payments delinquent for at least 30 days.
SEC. 13. Section 11354 is added to the Welfare and Institutions
Code, to read:
11354. In any action or proceeding brought by the district
attorney to establish parentage pursuant to Section 11475.1, the
court shall enter a judgment establishing parentage upon the filing
of a written stipulation between the parties provided that the
stipulation is accompanied by a written advisement and waiver of
rights which is signed by the defendant. The written advisement and
waiver of rights shall be developed by the Judicial Council.
SEC. 14. Section 11355 is added to the Welfare and Institutions
Code, to read:
11355. (a) Notwithstanding any other provision of law, in any
action filed by the district attorney pursuant to Section 11350,
11350.1, or 11475.1, a judgment shall be entered if the defendant
fails to file an answer or otherwise appear in the action within 30
days of service of process upon the defendant.
(b) If the defendant fails to file an answer with the court within
30 days of having been served as specified in subdivision (c) of
Section 11475.1, the proposed judgment shall become effective unless
the district attorney has filed a declaration and amended proposed
judgment pursuant to subdivision (c).
(c) If the district attorney receives additional financial
information within 30 days of service of the complaint and proposed
judgment on the defendant and the additional information would result
in a support order that is different from the amount in the proposed
judgment, the district attorney shall file a declaration setting
forth the additional information and an amended proposed judgment.
The declaration and amended proposed judgment shall be served on the
defendant in compliance with Section 1013 of the Code of Civil
Procedure or otherwise as provided by law. The defendant's time to
answer or otherwise appear shall be extended to 30 days from the date
of service of the declaration and amended proposed judgment.
(d) Upon entry of the judgment, the clerk of the court shall mail
by first-class mail, postage prepaid, a notice to the defendant that
his or her default has been taken and that the proposed judgment has
been entered.
SEC. 15. Section 11356 is added to the Welfare and Institutions
Code, to read:
11356. (a) In any action filed by the district attorney pursuant
to Section 11350, 11350.1, or 11475.1, the court may, on any terms
that may be just, relieve the defendant from that part of the
judgment or order concerning the amount of child support to be paid.
This relief may be granted after the six-month time limit of Section
473 of the Code of Civil Procedure has elapsed, based on the
grounds, and within the time limits, specified in this section.
(b) This section shall apply only to judgments or orders for
support that were based upon presumed income as specified in
subdivision (c) of Section 11475.1 and that were entered after the
entry of the default of the defendant under Section 11355. This
section shall apply only to the amount of support ordered and not
that portion of the judgment or order concerning the determination of
parentage.
(c) The court may set aside the child support order contained in a
judgment described in subdivision (b) if the defendant's income was
substantially different at the time the judgment was entered from the
income defendant was presumed to have. A "substantial difference"
means that amount of income that would result in an order for support
that deviates from the order entered by default by 20 percent or
more. If the difference between the defendant's actual income and
the presumed income would result in an order for support that
deviates from the order entered by default by less than 20 percent,
the court may set aside the child support order only if the court
states in writing or on the record that the defendant is experiencing
an extreme financial hardship due to the circumstances enumerated in
Section 4701 of the Family Code and that a set aside of the default
judgment is necessary to accommodate those circumstances.
(d) Application for relief under this section shall be accompanied
by a copy of the answer or other pleading proposed to be filed
together with an income and expense declaration and tax returns for
any relevant years. The Judicial Council may combine the application
for relief under this section and the proposed answer into a single
form.
(e) The burden of proving that the actual income of the defendant
deviated substantially from the presumed income shall be on the
defendant.
(f) A motion for relief under this section shall be filed within
90 days of the first collection of money by the district attorney or
the obligee. The 90-day time period shall run from the date that the
district attorney receives the first collection or from the date
that the defendant is served with notice of the collection, whichever
date occurs first. If service of the notice is by mail, the date of
service shall be as specified in Section 1013 of the Code of Civil
Procedure.
(g) In all proceedings under this section, before granting relief,
the court shall consider the amount of time that has passed since
the entry of the order, the circumstances surrounding the defendant's
default, the relative hardship on the child or children to whom the
duty of support is owed, the caretaker parent, and the defendant, and
other equitable factors that the court deems appropriate.
(h) If the court grants the relief requested, the court shall
issue a new child support order using the appropriate child support
guidelines currently in effect. The new order shall have the same
commencement date as the order set aside.
SEC. 16. Section 11475.1 of the Welfare and Institutions Code is
amended to read:
11475.1. (a) Each county shall maintain a single organizational
unit located in the office of the district attorney which shall have
the responsibility for promptly and effectively establishing,
modifying, and enforcing child support obligations, including medical
support, enforcing spousal support orders established by a court of
competent jurisdiction, and determining paternity in the case of a
child born out of wedlock. The district attorney shall take
appropriate action, both civil and criminal, to establish, modify,
and enforce child support and, when appropriate, enforce spousal
support orders when the child is receiving public assistance,
including Medi-Cal, and, when appropriate, may take the same actions
on behalf of a child who is not receiving public assistance,
including Medi-Cal.
(b) Actions brought by the district attorney to establish
paternity or child support or to enforce child support obligations
shall be completed within the time limits set forth by federal law.
The district attorney's responsibility applies to spousal support
only where the spousal support obligation has been reduced to an
order of a court of competent jurisdiction. In any action brought
for modification or revocation of an order that is being enforced
under Title IV-D of the Social Security Act (42 U.S.C. Sec. 651 et
seq.), the effective date of the modification or revocation shall be
as prescribed by federal law (42 U.S.C. Sec. 666(a)(9)), or any
subsequent date.
(c) (1) The Judicial Council, in consultation with the department
and representatives of the California Family Support Council, the
Senate Committee on Judiciary, the Assembly Committee on Judiciary,
and a legal services organization providing representation on child
support matters, shall develop simplified summons, complaint, and
answer forms for any action for support brought pursuant to this
section or Section 11350.1. The Judicial Council may combine the
summons and complaint in a single form.
(2) The simplified complaint form shall provide the defendant with
notice of the amount of child support that is sought pursuant to the
guidelines set forth in Article 2 (commencing with Section 4050) of
Chapter 2 of Part 2 of the Family Code based upon the income or
income history of the defendant as known to the district attorney.
If the defendant's income or income history is unknown to the
district attorney, the complaint shall inform the defendant that
income shall be presumed in an amount that results in a court order
equal to the minimum basic standard of adequate care provided in
Section 11452 unless information concerning the defendant's income is
provided to the court. The complaint form shall be accompanied by a
proposed judgment. The complaint form shall include a notice to the
defendant that the proposed judgment will become effective if he or
she fails to file an answer with the court within 30 days of service.
(3) (A) The simplified answer form shall be written in simple
English and shall permit a defendant to answer and raise defenses by
checking applicable
boxes. The answer form shall include instructions for completion of
the form and instructions for proper filing of the answer.
(B) The answer form shall be accompanied by a blank income and
expense declaration or simplified financial statement and
instructions on how to complete the financial forms. The answer form
shall direct the defendant to file the completed income and expense
declaration or simplified financial statement with the answer, but
shall state that the answer will be accepted by a court without the
income and expense declaration or simplified financial statement.
(C) The clerk of the court shall accept and file answers, income
and expense declarations, and simplified financial statements that
are completed by hand provided they are legible.
(4) (A) The simplified complaint form prepared pursuant to this
subdivision shall be used by the district attorney or the Attorney
General in all cases brought under this section or Section 11350.1.
(B) The simplified answer form prepared pursuant to this
subdivision shall be served on all defendants with the simplified
complaint. Failure to serve the simplified answer form on all
defendants shall not invalidate any judgment obtained. However,
failure to serve the answer form may be used as evidence in any
proceeding under Section 11356 of this code or Section 473 of the
Code of Civil Procedure.
(C) The Judicial Council shall add language to the governmental
summons, for use by the district attorney with the governmental
complaint to establish parental relationship and child support,
informing defendants that a blank answer form should have been
received with the summons and additional copies may be obtained from
either the district attorney's office or the superior court clerk.
(d) In any action brought or enforcement proceedings instituted by
the district attorney pursuant to this section for payment of child
or spousal support, an action to recover an arrearage in support
payments may be maintained by the district attorney at any time
within the period otherwise specified for the enforcement of a
support judgment, notwithstanding the fact that the child has
attained the age of majority.
(e) The county shall undertake an outreach program to inform the
public that the services described in subdivisions (a) to (c),
inclusive, are available to persons not receiving public assistance.
There shall be prominently displayed in every public area of every
office of the units established by this section a notice, in clear
and simple language prescribed by the Director of Social Services,
that the services provided in subdivisions (a) to (c), inclusive, are
provided to all individuals whether or not they are recipients of
public social services.
(f) In any action to establish a child support order brought by
the district attorney in the performance of duties under this
section, the district attorney may make a motion for an order
effective during the pendency of that action, for the support,
maintenance, and education of the child or children that are the
subject of the action. This order shall be referred to as an order
for temporary support. This order shall have the same force and
effect as a like or similar order under the Family Code.
The district attorney shall file a motion for an order for
temporary support within the following time limits:
(1) If the defendant is the mother, a presumed father under
Section 7611 of the Family Code, or any father where the child is at
least six months old when the defendant files his answer, the time
limit is 90 days after the defendant files an answer.
(2) In any other case where the defendant has filed an answer
prior to the birth of the child or not more than six months after the
birth of the child, then the time limit is nine months after the
birth of the child.
If more than one child is the subject of the action, the
limitation on reimbursement shall apply only as to those children
whose parental relationship and age would bar recovery were a
separate action brought for support of that child or those children.
If the district attorney fails to file a motion for an order for
temporary support within time limits specified in this section, the
district attorney shall be barred from obtaining a judgment of
reimbursement for any support provided for that child during the
period between the date the time limit expired and the motion was
filed, or, if no such motion is filed, when a final judgment is
entered.
Nothing in this section prohibits the district attorney from
entering into cooperative arrangements with other county departments
as necessary to carry out the responsibilities imposed by this
section pursuant to plans of cooperation with the departments
approved by the State Department of Social Services.
Nothing in this section shall otherwise limit the ability of the
district attorney from securing and enforcing orders for support of a
spouse or former spouse as authorized under any other provision of
law.
(g) As used in this article, "enforcing obligations" includes, but
is not limited to, (1) the use of all interception and notification
systems operated by the State Department of Social Services for the
purposes of aiding in the enforcement of support obligations, (2) the
obtaining by the district attorney of an initial order for child
support, which may include medical support or which is for medical
support only, by civil or criminal process, (3) the initiation of a
motion or order to show cause to increase an existing child support
order, and the response to a motion or order to show cause brought by
an obligor parent to decrease an existing child support order, or
the initiation of a motion or order to show cause to obtain an order
for medical support, and the response to a motion or order to show
cause brought by an obligor parent to decrease or terminate an
existing medical support order, without regard to whether the child
is receiving public assistance, and (4) the response to a notice of
motion or order to show cause brought by an obligor parent to
decrease an existing spousal support order when the child or children
are residing with the obligee parent and the district attorney is
also enforcing a related child support obligation owed to the obligee
parent by the same obligor.
(h) As used in this section, "out of wedlock" means that the
biological parents of the child were not married to each other at the
time of the child's conception.
(i) The district attorney is the public agency responsible for
administering wage withholding for the purposes of Title IV-D of the
Social Security Act (42 U.S.C. Sec. 651 et seq.). The district
attorney shall seek an earnings assignment order for support in any
case as soon as the obligor is in arrears in payment of support
pursuant to Chapter 8 (commencing with Section 5200) of Part 5 of
Division 9 of the Family Code.
Nothing in this section shall limit the authority of the district
attorney granted by other sections of this code or otherwise granted
by law.
(j) In the exercise of the authority granted under this article,
the district attorney may intervene, pursuant to subdivision (b) of
Section 387 of the Code of Civil Procedure, by ex parte application,
in any action under the Family Code, or other proceeding wherein
child support is an issue or a reduction in spousal support is
sought. By notice of motion, order to show cause, or responsive
pleading served upon all parties to the action, the district attorney
may request such relief as appropriate which the district attorney
is authorized to seek.
(k) The district attorney shall comply with any guidelines
established by the State Department of Social Services which set time
standards for responding to requests for assistance in locating
absent parents, establishing paternity, establishing child support
awards, and collecting child support payments.
(l) As used in this article, medical support activities which the
district attorney is authorized to perform are limited to the
following:
(1) The obtaining and enforcing of court orders for health
insurance coverage.
(2) Any other medical support activity mandated by federal law or
regulation.
(m) (1) Notwithstanding any other provision of law, venue for an
action or proceeding under this part shall be determined as follows:
(A) Venue shall be in the superior court in the county that is
currently expending public assistance.
(B) If public assistance is not currently being expended, venue
shall be in the superior court in the county where the child who is
entitled to current support resides or is domiciled.
(C) If current support is no longer payable through, or
enforceable by, the district attorney, venue shall be in the superior
court in the county that last provided public assistance for actions
to enforce arrearages assigned pursuant to Section 11477.
(D) If subparagraphs (A), (B), and (C) do not apply, venue shall
be in the superior court in the county of residence of the support
obligee.
(E) If the support obligee does not reside in California, and
subparagraphs (A), (B), (C), and (D) do not apply, venue shall be in
the superior court of the county of residence of the obligor.
(2) Notwithstanding paragraph (1), if the child becomes a resident
of another county after an action under this part has been filed,
venue may remain in the county where the action was filed until the
action is completed.
(n) The district attorney of one county may appear on behalf of
the district attorney of any other county in an action or proceeding
under this part.
SEC. 17. Section 11478.2 of the Welfare and Institutions Code is
amended to read:
11478.2. (a) In all actions involving paternity or support,
including, but not limited to, proceedings under the Family Code, and
under this division, the district attorney and Attorney General
represent the public interest in establishing, modifying, and
enforcing support obligations. No attorney-client relationship shall
be deemed to have been created between the district attorney or
Attorney General and any person by virtue of the action of the
district attorney or the Attorney General in carrying out these
statutory duties.
(b) The provisions of subdivision (a) are declarative of existing
law.
(c) In all requests for services of the district attorney or
Attorney General pursuant to Section 11475.1 relating to actions
involving paternity or support, not later than the same day an
individual makes a request for these services in person, and not
later than five working days after either (1) a case is referred for
services from the county welfare department, (2) receipt of a request
by mail for an application for services, or (3) an individual makes
a request for services by telephone, the district attorney or
Attorney General shall give notice to the individual requesting
services or on whose behalf services have been requested that the
district attorney or Attorney General does not represent the
individual or the children who are the subject of the case, that no
attorney-client relationship exists between the district attorney or
Attorney General and those persons, and that no such representation
or relationship shall arise if the district attorney or Attorney
General provides the services requested. Notice shall be in bold
print and in plain English and shall be translated into the language
understandable by the recipient when reasonable. The notice shall
include the advice that the absence of an attorney-client
relationship means that communications from the recipient are not
privileged and that the district attorney or Attorney General may
provide support enforcement services to the other parent in the
future.
(d) The district attorney or Attorney General shall give the
notice required pursuant to subdivision (c) to all recipients of
services under Section 11475.1 who have not otherwise been provided
that notice, not later than the date of the next annual notice
required under Section 11476.2. This notice shall include
notification to the recipient of services under Section 11475.1 that
the recipient may inspect the clerk's file at the county clerk's
office, and that, upon request, the district attorney, or, if
appropriate, the Attorney General, will furnish a copy of the most
recent order entered in the case.
(e) The district attorney, or, if appropriate, the Attorney
General, shall serve a copy of the complaint for paternity or
support, or both on recipients of support services under Section
11475.1, as specified in paragraph (2) of subdivision (e) of Section
11350.1. A notice shall accompany the complaint which informs the
recipient that the district attorney or Attorney General may enter
into a stipulated order resolving the complaint, and that if the
recipient wishes to assist the prosecuting attorney, he or she should
send all information on the noncustodial parent's earnings and
assets to the prosecuting attorney.
(f) (1) The district attorney or Attorney General shall provide
written notice to recipients of services under Section 11475.1 of the
initial date and time, and purpose of every hearing in a civil
action for paternity or support. The notice shall include the
following language:
IMPORTANT NOTICE
It may be important that you attend the hearing. The district
attorney does not represent you or your children. You may have
information about the noncustodial parent, such as information about
his or her income or assets, or your need for support that will not
be presented to the court unless you attend the hearing. With the
permission of the court, you have the right to be heard in court and
tell the court what you think the court should do with the child
support order.
If you have a court order for support that arose as part of your
divorce, this hearing could change your rights or your children's
rights to support. You have the right to attend the hearing and,
with the permission of the court, to be heard.
If you would like to attend the hearing and be told about any changes
to the hearing date or time, notify this office by ____. The
district attorney or Attorney General will then have to tell you
about any changes to the hearing date or time.
(2) The notice shall state the purpose of the hearing or be
attached to the motion or other pleading which caused the hearing to
be scheduled.
(3) The notice shall be provided separate from all other material
and shall be in at least 14-point type. The failure of the district
attorney or Attorney General to comply with this subdivision shall
not affect the validity of any order.
(4) The notice shall be provided not later than seven calendar
days prior to the hearing, or, if the district attorney or Attorney
General receives notice of the hearing less than seven days prior to
the hearing, within two days of the receipt by the district attorney
or Attorney General of the notice of the hearing.
(5) The district attorney or Attorney General shall, in order to
implement this subdivision, make reasonable efforts to ensure that
the district attorney or Attorney General has current addresses for
recipients of support enforcement services.
(g) The district attorney or Attorney General shall give notice to
recipients of services under Section 11475.1 of every order obtained
by the district attorney or Attorney General that establishes or
modifies the support obligation for the recipient or the children who
are the subject of the order, by sending a copy of the order to the
recipient. The notice shall be made within 30 calendar days after
the order has been filed. The district attorney or Attorney General
shall also give notice to these recipients of every order obtained in
any other jurisdiction, that establishes or modifies the support
obligation for the recipient or the children who are the subject of
the order, and which is received by the district attorney or Attorney
General, by sending a copy of the order to the recipient within 30
calendar days after the district attorney or Attorney General has
received a copy of the order. In any action enforced under Chapter 6
(commencing with Section 4800) of Part 5 of Division 9 of the Family
Code, the notice shall be made in compliance with the requirements
of that chapter. The failure of the district attorney or Attorney
General to comply with this subdivision shall not affect the validity
of any order.
(h) The district attorney or Attorney General shall give notice to
the noncustodial parent against whom a civil action is filed that
the district attorney or Attorney General is not the attorney
representing any individual, including, but not limited to, the
custodial parent, the child, or the noncustodial parent.
(i) Nothing in this section shall be construed to preclude any
person who is receiving services under Section 11475.1 from filing
and prosecuting an independent action to establish, modify, and
enforce an order for current support on behalf of himself or herself
or a child if that person is not receiving public assistance.
(j) A person who is receiving services under Section 11475.1 but
who is not currently receiving public assistance on his or her own
behalf or on behalf of a child shall be asked to execute, or consent
to, any stipulation establishing or modifying a support order in any
action in which that person is named as a party, before the
stipulation is filed. The district attorney or Attorney General
shall not submit to the court for approval a stipulation to establish
or modify a support order in such an action without first obtaining
the signatures of all parties to the action, their attorneys of
record, or persons authorized to act on their behalf.
(k) The district attorney or Attorney General shall not enter into
a stipulation which reduces the amount of past due support,
including interest and penalties accrued pursuant to an order of
current support, on behalf of a person who is receiving support
enforcement services under Section 11475.1 and who is owed support
arrearages that exceed unreimbursed public assistance paid to the
recipient of the support enforcement services, without first
obtaining the consent of the person who is receiving services under
Section 11475.1 on his or her own behalf or on behalf of the child.
(l) The notices required in this section shall be provided in the
following manner:
(1) In all cases in which the person receiving services under
Section 11475.1 resides in California, notice shall be provided by
mailing the item by first-class mail to the last known address of, or
personally delivering the item to, that person.
(2) In all actions enforced under Chapter 6 (commencing with
Section 4800) of Part 5 of Division 9 of the Family Code, unless
otherwise specified, notice shall be provided by mailing the item by
first-class mail to the initiating court.
(m) Notwithstanding any other provision of this section, the
notices provided for pursuant to subdivisions (c) to (g), inclusive,
shall not be required in foster care cases.
SEC. 18. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for any
costs incurred pursuant to this act because this act provides
additional revenue that is specifically intended to fund the costs in
an amount sufficient to pay for the program or level of service
mandated by this act, within the meaning of Section 17556 of the
Government Code.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.