Update on 2023 Family Law Legislation
By Justin M. O’Connell, Esq.
Author’s Note: Each year, FLEXCOM tracks family law bills and meets about four times before the end of the legislative session in September to discuss the bills. As part of that process, FLEXCOM members contact the authors’ office to obtain information about bills, then FLEXCOM meets to discuss the bills. As part of that discussion, FLEXCOM decides whether to take a formal position regarding the bill, e.g., support, support if amended, oppose, or oppose unless amended. If a formal position is taken, then often a letter stating the position and grounds thereof is submitted to the Legislature. However, FLEXCOM might also contact authors’ staff to discuss FLEXCOM’s concerns about a bill. The following highlights some of the new bills affecting family law that were signed into law by the Governor. The below also outlines FLEXCOM’s involvement in the bill amendment process.
Section 271 Sanctions (AB 1179)
AB 1179 did not make a sweeping change to Family Code section 271 but did bring clarity. The current version of Section 271 states that the sanctioned party must receive notice of the proposed sanction and an opportunity to be heard, but it does not expressly state who provides the requisite notice. In Featherstone v. Martinez (2022) 86 Cal.App.5th 775, the court questioned whether the statute authorizes a trial court to issue sanctions on its own motion. In footnote 12 of the opinion, the court observed that similar statutes state notice may be provided by the court on its own motion. This bill clarifies what has been existing practice in that either a party or the court on its own motion may provide notice of possible sanctions under Section 271.
Civil Discovery Requirements (SB 235)
SB 235 was introduced to make California civil discovery similar to that under the Federal Rules of Civil Procedure by requiring certain information and documents to be provided between the parties. Generally, SB 235 requires that, on demand of any party, all parties that have appeared must provide “initial disclosures” including witness information, contact information for any person with discoverable evidence, all documents or a description of the documents that support a parties’ claims or defenses, and information about insurance that might satisfy a judgment. This form of discovery can be used at the outset of a case to obtain information to guide additional discovery and promote settlement of civil cases.
FLEXCOM had discussions with the author’s staff regarding this bill. FLEXCOM noted that family law cases technically fall under the broader category of civil cases and therefore would be subject to this bill. In family law cases, often the claims are not fully known at the outset of a case (e.g., custody issues that have not arisen), and in dissolution and legal separation cases each party is already required to make financial disclosures early in the case. Simply stated, the disclosures under SB 235 would not make sense in family law cases and are aimed at promoting resolution of general civil cases. After this dialogue, SB 235 was amended to its final form which expressly excludes cases arising under the Family Code. (The author also worked with the Trusts and Estates Section resulting in cases falling under the Probate Code also being excluded.)
Reunification Therapy (SB 331)
SB 331 was introduced in part due to the tragic killing of a child by his parent, in part in response to instances of children being physically forced to attend therapy, and in part to entitle California to federal grants. Initially, the bill significantly limited the types and scope of therapy for children, and required reunification therapy to focus on the behavior of a rejected parent (that would be so even if a rejected parent is not the cause of the rejection). FLEXCOM submitted a letter opposing the bill unless it was amended noting that the then-current version of the bill would “effectively eliminate the court’s ability to order family focused therapy when a child is estranged from a parent, regardless of the reasons for that estrangement, substantially altering existing law and policy.”
FLEXCOM’s letter also proposed amendments that would conform with the purpose of the bill yet continue to afford judicial discretion to meet the needs of children. Thereafter, FLEXCOM had discussions with the author’s staff about FLEXCOM’s concerns and how to reshape the bill. The September 5, 2023, Assembly Floor Analysis for SB 331 noted that FLEXCOM had expressed concerns that determining the best interest the child is best done on a “case-by-case” basis, and that overly prescriptive prohibitions would not give the trial court enough flexibility.
SB 331 was amended on September 8, 2023, into its final version. This final version was a substantial departure from the prior versions, and the language that FLEXCOM was concerned about was removed. In its final version, SB 331 no longer outright prohibits types of therapy, and no longer requires counseling to address behavior of the rejected parent, but instead focuses on the methods of implementing therapy (e.g., no use of force, no overnight or out of state stay, and the court may not order a child not have contact with the other parent).
Child Support (SB 343)
In 2022, the Judicial Council published its quadrennial report reviewing California’s child support laws. Many of its recommendations were incorporated into SB 343. The changes in law that the bill implements are effective September 1, 2024. The guideline child support formula has been changed based on lengthy inquiry by the Judicial Council about appropriate modifications. Also, the Judicial Council noted that many litigants do not know that they can request child support add-ons be allocated other than 50/50. The bill adopts the recommendation that such add-ons be allocated by default in proportion to the parents’ net spendable income, though a party may request a different allocation. The bill adds that childcare expenses are reimbursable add-ons if they are actually incurred and are presumably reasonable if actually incurred.
The bill also adds categories of income to Family Code section 4058 that are considered income for child support purposes. FLEXCOM was concerned that the bill initially included capital gains in that list. FLEXCOM discussed the issue with the author’s staff and legislative committee staff. The concern centered on the fact that in some cases capital gains does not reflect actual cash flow available to a parent to support a child. For example, a recipient of support is awarded the family home in a marital dissolution, sells it and uses the proceeds to buy another home, but must report a capital gain. If that capital gain were automatically considered support, that recipient of support would have to rebut the presumption it is income. FLEXCOM noted that the Judicial Council report indicated California law did not address capital gains, but that there is existing case law on that issue. Exiting case law provides that a court has discretion to decide whether capital gain should be considered income for support purposes. The bill was subsequently amended to remove capital gains from the list of income under Family Code section 4058.
Visitation in DV Cases (SB 599)
SB 599 was introduced with the goal of providing additional protection to victims of domestic violence and their children when a court orders that the restrained party has visitation. There are several ways the bill aimed to achieve these goals, including adding further protections regarding the location of confidential residences and clarifying that the court may order virtual visitation as an alternative to in person visits.
FLEXCOM had concerns with part of the bill, particularly with language providing for virtual visit orders if virtual visits were safer than in person visits. The language could have made it near certain that virtual visits would be ordered in nearly all cases since virtual visits are safer than in person visits and FLEXCOM was prepared to raise its concerns with the author’s office. However, the concerning language was removed prior to FLEXCOM discussing them with the author’s office. In the bill’s final version, in addition to clarifying that virtual visits can be ordered, it also made changes to existing law protecting confidentiality of residences. Also, the final version of the bill provides new guidance for the court to consider the nature of the abusive acts, time that has elapsed and other factors in considering what type of visitation to order.
Discovery In DV Cases (SB 741)
SB 741 significantly limits discovery in domestic violence cases. A stated goal of the bill is to prevent ongoing abuse of a victim through use of discovery methods to harass and intimidate the victim. The bill allows discovery only upon a showing of good cause, and requiring the court to consider such factors as the importance if the information sought, potential trauma induced by the discovery, and whether discovery will delay adjudication. As to timing of a request to conduct discovery, a party may make an oral or written request for discovery at the evidentiary hearing. FLEXCOM had concerns with workability and ambiguity of some of the provisions of the bill as introduced. FLEXCOM discussed those concerns with the author’s office and the bill was subsequently amended to remove those concerns.
There are several family law bills FLEXCOM is tracking from this year that will carry over into next year. Also, as new bills are introduced at the beginning of next year, FLEXCOM will review them and track those affecting family law. Through FLEXCOM’s involvement in the legislative process, FLEXCOM will continue its work to improve the practice of family law, to ensure the voice of family law practitioners is heard, and help craft laws that meet our clients’ needs.