Here’s a look back at California’s 2018 legislative session, which produced several significant changes to existing law. 2019 has brought new and amended laws in the following subject matter areas: custody, domestic violence, parentage, same-sex parentage, licensed professional clinical counselors, mediation processes and pet custody.

Links to the bills themselves are provided at the end of each summary. (If you click the link provided, the “today’s law as amended” tab on the http://leginfo.legislature.ca.gov website is the best option for seeing the strike-through of existing law, amendments and new language.)

AB 2044 (Stone)

Impacted Code Sections

Family Code §§ 3011, 3020, 3044 and 3100 and Government Code § 68555

Summary

AB 2044 modifies existing law by strengthening the presumption against joint custody for a perpetrator of domestic violence, and by amending the code sections articulating the best interests standard and related legislative findings to reflect that strengthened presumption.

Courts will now be required to make a best interests determination (FC § 3011) consistent with the legislative findings (FC § 3020) that (1) the health, safety and welfare of a child is the predominant factor; (2) the occurrence of domestic violence or abuse in a child’s household is detrimental to the health, safety and welfare of the child; and (3) a child should have frequent and continuing contact with both parents; but (4) where concerns for a child’s health, safety and welfare conflict with the need for frequent and continuing contact with a parent, the child’s health, safety and welfare predominates.

Previously, “substantial” independent corroboration of alleged abuse was required when determining whether the presumption against the exercise of joint custody should apply; now, only independent corroboration is required.

In addition, the universe of prior domestic abuse claims the court is required to consider has been expanded. Prior law required that, in order for the presumption against the exercise of joint custody to apply, the domestic violence must have been perpetrated against the other party seeking custody, the child or the child’s siblings, within the previous five years. Going forward, in determining the applicability of the FC § 3044 presumption, the court will also be required to consider any history abuse perpetrated against a parent, current spouse or cohabitant, or a person in a “dating or engagement” relationship.

Courts are now required to provide a written statement of findings when finding that the presumption against the exercise of joint custody has been overcome, consistent with the holding in Jaime G. v. H.L. (2018) 25 Cal.App.5th 794.

On an additional procedural note, court must now determine whether the presumption against the exercise of joint custody shall apply “…in an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence…” (AB 2044, Section 3/new FC § 3044(g).) This language leaves the door open for a domestic violence allegation to be made at any time during any proceeding in which custody is at issue. The new section 3044 (g) provides for a continuance, if necessary, to determine whether the FC § 3044 presumption should apply.

Finally, AB 2044 expands the Judicial Council’s scope of judicial training regarding domestic violence.

Status

Approved by the Governor on September 30, 2018; Chaptered

Effective Date

January 1, 2019

Link

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2044

 

AB 2274 (Quirk)

Impacted Code Sections

Adds new Family Code § 2605, relating to the division of community property (pets)

Summary

Though this bill avoids the use of the term “custody,” it is generally understood to be a pet custody bill.

Under California law, pets are categorized as personal property. This bill allows parties in a proceeding for dissolution of marriage or legal separation to “petition” the court for “sole or joint” ownership, with the care of the animal being a consideration.

In addition, it provides for a temporary order, during the pendency of proceeding, that one party shall care for the pet, while providing that the temporary order shall not impact the final determination regarding ownership. (But can you argue stability and continuity at trial?)

It also defines “pet animal” as any animal that is community property and kept as a “household pet.”

Status

Approved by the Governor on September 27, 2018; Chaptered

Effective Date

January 1, 2019

Link

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2274

 

AB 2296 (Waldron)

Impacted Code Sections (Partial List)

Family Code §§ 3110.5, 7663, 7827, 7850, 7851, 8502 and 9001 and Evidence Code § 1010

Summary

AB 2296 modifies existing law in a variety of ways, not all of which are enumerated here. (For full bill, see link, below.)

Generally, it includes licensed professional clinical counselors (“LPCCs”) as a professional group which is not prohibited from “doing psychological work” and as healing arts licensees who may provide services via a psychological corporation. Some portions of the bill add clinical social workers to the lists of individuals who may provide services.

Of particular interest to AFCC, as a result of this bill, LPCCs who are “qualified to assess couples and families” and who meet the education, experience and training requirements to act as child custody evaluators may perform child custody evaluations.

It also adds LPCCs to the list of professions able to provide investigative services for actions involving termination of parental rights, emancipation of minors and stepparent adoptions.

Finally, both LPCCs and clinical social workers are added to the list of “multidisciplinary personnel” who may work on child abuse multidisciplinary personnel teams.

Status

Approved by the Governor on September 14, 2018; Chaptered

Effective Date

January 1, 2019

Link

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2296

 

AB 2684 (Bloom)

Impacted Code Sections (Including New Sections)

Code of Civil Procedure § 2032.010; Family Code §§ 7540, 7541, 7550, 7550.5, 7551, 7552, 7552.5, 7554, 7555, 7556, 7558, 7559, 7560, 7562, 7570, 7571, 7572, 7573, 7573.5, 7574, 7575, 7576, 7577, 7578, 7580, 7581, 7604, 7612, 7613, 7630, 7635, 7640, 7644, 7645, 7646, 7647, 7647.7, 7648, 7649, 7650, and 17412; Health and Safety Code §§ 1635, 1644, 1644.1, 1644.2, 1644.3, 102766 and 102767

Summary

The impetus behind AB 2684 was to ensure that children born of same-sex couples have the benefit of the same parentage policies, procedures and presumptions as children born to opposite-sex couples.

In addition to other changes, AB 2684 makes significant changes to existing law and creates new law regarding parentage procedures and presumptions; adopts gender-neutral language wherever possible; updates existing statutory processes to utilize genetic rather than blood testing; and finally, adds parents who utilize assisted reproduction as types of parents who may establish a parental relationship via a Voluntary Declaration of Parentage (aka “POP DEC” or “VDOP”).

Status

Approved by the Governor on September 28, 2018; filed with the Secretary of State on September 28, 2018

Effective Date

Some provisions are effective 1/1/19; others are effective 1/1/20.

Link

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2684

 

AB 2694 (Rubio)

Impacted Code Sections

Family Code §§ 6300, 6326 and 6340

Summary

First, this bill clarifies that, in the event of an ex parte (i.e. without notice) application for a temporary restraining order, the fact that the other party has not received notice may not be the sole basis for denial of the requested order.

Second, AB 2694 also changes the notice requirements for a temporary restraining order and notice of hearing, in an attempt to avoid situations in which the person sought to be restrained successfully evades issuance of a permanent order by evading personal service of the notice of hearing. AB 2694 provides that if, “at the time of hearing”, in spite of “diligent” efforts by the party seeking the order, service has not been perfected on the party sought to be restrained, and “there is reason to believe that the restrained party is evading service” (new 6340(a)(2)(A)), the court may elect to permit an alternate method of service. The permitted alternatives to personal service are types of service currently permitted for general civil matters under Code of Civil Procedure §§ 415.20 through 415.40 and 415.50. Use of one of these alternate methods of service would then clear the way for the hearing on the permanent restraining order.

Finally, the bill provides that if an alternate method of service is approved by the court, a continuance of the hearing for the permanent restraining order is appropriate (presumably it would constitute a showing of “good cause”) under existing Family Code § 245.

Status

Approved by the Governor on August 27, 2018; Chaptered

Effective Date

January 1, 2019

Link

http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201720180AB2694

 

AB 2780 (Bloom)

Impacted Code Sections

In relevant part, Family Code § 4058

Summary

Of note to custody practitioners, this bill strengthens existing imputation law by requiring courts to consider “the overall welfare and developmental needs of the children, and the time that parent spends with the children” when imputing income to a parent for child support purposes (AB 2780/4058(b)).

Status

Approved by the Governor on August 20, 2018; Chaptered

Effective Date

January 1, 2019

Link

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2780

 

SB 954 (Wieckowski)

Impacted Code Sections

Amends existing Evidence Code § 1122 and adds new Evidence Code § 1129

Summary

SB 954 represents a compromise position that evolved from the tension between the strong public policy in favor of mediation confidentiality and the countervailing concern that a client should be able introduce evidence of attorney malpractice, even if that evidence would ordinarily be protected by the stringent rules protecting mediation confidentiality. These competing concerns were discussed by the California Supreme Court in Cassel v. Superior Court (2011) 51 Cal.4th 113.)

This bill resolves the competing concerns articulated in Cassel by creating consumer awareness about the extent of mediation confidentiality via a signed disclosure. Going forward, in all cases other than class or representative actions, attorneys should provide the required safe harbor disclosure to the client for review and signature prior to commencement of the mediation process.

Note that new Evidence Code § 1129 provides statutory-compliant language for the required client disclosure.

Status

Approved by the Governor on September 11, 2018; Filed with the Secretary of State on September 11, 2018

Effective Date

January 1, 2019

Link

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB954

 

SB 1089 (Jackson)

Impacted Code Sections

Amends existing Family Code § 6380

Summary

SB 1089 clarifies existing law by declaring the California Legislature’s intent that “non-CLETS orders” are not permitted under law, and that all protective orders “of a certain type” should be promptly entered into the California Law Enforcement Transmittal System (“CLETS”).

The specific types of orders which are required to be entered into the CLETS system include the following family law-relevant categories: temporary restraining orders or injunctions for threat of harassment, workplace violence restraining orders, school or campus violence restraining orders, domestic violence restraining orders, elder or dependent adult abuse restraining orders, gun violence restraining orders, and juvenile restraining orders.  (Civil Code §§ 527.6, 527.8, 527.85; Welf. & Inst. Code §§ 213.5, 304, 362.4, 15657, 6401.)

Status

Approved by the Governor on July 9, 2018; Chaptered.

Effective Date

January 1, 2019

Link

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB1089


Kendall Lynn Evans is an attorney who works with family law litigants to represent them through the divorce and separation process. Her practice is in Long Beach, California. A substantial portion of her practice is complex custody and domestic violence matters. Ms. Evans believes in law as a helping profession and views the role of a divorce attorney as helping both the parties (and their children) transition to a more positive situation. She graduated from the University of Southern California, Gould School of Law in 2000, and has limited her practice to family law since 2006. Ms. Evans completed significant post-graduate education in negotiation and alternative dispute resolution and is a trained mediator. She is an active participant in several family law organizations, including AFCC-CA and the Executive Committee of the Family Law Section of the Los Angeles County Bar Association.