LEGISLATION (2024 wrap up)

November 2024

By: Justin O’Connell, Esq.

AB 2024 – Domestic Violence Restraining Orders

The vast majority of ex parte DVROs are sought without assistance of counsel.  Court clerks sometimes refuse to accept forms because of missing information or other errors on any one of the required forms. This creates a delay in getting the request to the judicial officer who has the power to grant or deny the protective order.  This bill amends Family Code section 6300 so that a clerk may not reject an ex parte DVRO request if submitted on required forms and identifies the protected party and the restrained party. 

AB 2397 – Child Support Paid to Special Needs Trust

Supplemental Security Income, known as (SSI), is a federal benefit available to low-income people (usually under 65) who are blind or disabled.  As a means-tested program, SSI benefits may be denied or reduced if the beneficiary has assets or income in excess of a threshold amount. However, assets held in a special needs trust are not counted for purposes of determining eligibility or benefits for SSI, Medicaid, and other federal programs.  Establishing a special needs trust preserves funds for the disabled beneficiary’s care without disqualifying that person from eligibility for SSI and other benefits.  A special needs trust itself is established under state law.

While California parents of a disabled adult child can establish a special needs trust so the child can continue to receive SSI and other public benefits, where parents are not married, and child support payments are made, then a problem can arise.  SSI counts two-thirds of the child support payments as income to the child, so child support payments will substantially reduce the SSI benefit.  This has a substantial impact considering that the maximum SSI benefit in California in 2024 is $1,182.94.  However, child support payments are deposited in special needs trust, the SSI benefit will not be affected.

This bill addresses this problem by amending Family Code 3910 to expressly allow a judge to order child support payments be made to a special needs trust that meets particular federal and state requirements. 

Practice pointer: Several estate planning attorneys that specialize in special needs trusts were instrumental in the drafting of the final version of this bill to clarify the particular types of special needs trusts that should be used (there is more than one type).  If you have a dependent adult child support case and consider obtaining this order – whether by stipulation or litigation – you might want to consult with an attorney who specializes in special needs trusts to ensure the correct type of trust is the recipient of the child support payments.  Also, if the issue is litigated, the judge would likely want some confirmation that the proposed recipient trust meets the federal and state requirements (e.g., via a declaration from an estate planning attorney confirming the trust so meets the requirements).

AB 2484 – Juvenile Dependency: Remote Appearance of Experts

In juvenile dependency cases, a party might need the assistance of an expert witness.  In addition to fees for pre-hearing consultation, experts also charge for the court appearance time.  Cases get delayed, or continued, and expert fees can mount, which can have a substantial impact on financially disadvantaged parties’ access to justice.  This bill amends Code of Civil Procedure section 367.75 to allow a parent, child, nonminor dependent, or Indian tribe to have an expert appear remotely without needing the consent of other parties.

AB 2759 – DVRO: Firearms Exceptions

This bill substantially overhauls exemptions to firearm relinquishment orders in a DVRO proceeding.  Generally, under existing law, the persons subject to a DVRO must surrender all firearms and ammunition they own or possess.  There is an exemption that permits peace officers or others whose professional duties require them to carry a particular firearm to continue to do so under certain circumstances.  The exemption has been noted to be unclear, vague, limited, and contradictory.

AB 2759 amends Family Code section 6389 through January 1, 2026, then amends the section thereafter.  For example, this bill clarifies that the exemption only applies while the respondent’s employment status doesn’t change, and if renewal of the restraining order is sought then the judge must determine if the exemption remains appropriate.  Also, this bill clarifies that the exemption may only be granted if the respondent is not otherwise prohibited from having a firearm under the law, and also ensures that those with the exemption cannot purchase any additional firearms and must surrender any additional firearms or ammunition in their possession.

AB 2929 – Juvenile Dependency: Family Placement

It is estimated that there are over 45,000 children in the California foster care system.  Studies have shown that children who are placed with relatives rather than strangers in foster homes or group care benefit significantly.  Also, studies show that children placed with relatives are more likely to remain in the same neighborhood and maintain consistent contact with their birth parents and siblings.  This bill requires the judge to consider at review hearings the efforts of the social worker in locating family members of a child for family support or placement.

AB 3072 – Ex Parte Child Custody Orders

A judge should not make an order granting or modifying child custody on an ex parte basis unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California.  This bill amends Family Code section 3064 to include a parent’s illegal access to firearms or ammunition as “immediate harm”.

If a judge issues an ex parte order granting or modifying child custody, the judge must grant reasonable visitation when it is shown that the visitation would be in the best interest of the child.  This bill amends Family Code section 3100 regarding the process of appointing a supervised visitation provider and adding that the nature of the acts that led to the finding of risk of harm or risk of removal are factors when considering the type of visitation that will be ordered.

SB 554 – DVRO: Jurisdiction and Venue

It is unclear under current law if a non-resident of California can obtain a DVRO in a California court.  Current law does not specifically give California courts the authority to hear and issue restraining order petitions by non-residents, as laws in other states do.  For example, married persons are temporarily in California for vacation, one assaults the other, the perpetrator returns home to another state, and the victim remains in California temporarily because they cannot return home in another state to the abuser.  The lack of clarity can leave victims of abuse without a legal forum if neither state’s court may claim jurisdiction.  This bill amends Family Code section 6301 to make clear a non-resident can request a DVRO and sets forth venue for such a request.

SB 575 – Underage Marriage

California is one of only five states that has no minimum age at which a person can enter into a marriage or a domestic partnership, provided that permission is granted by a judge.  There is some evidence that less than 20 marriages to a minor occur in California each year.  There is other evidence suggesting that minors marry in higher numbers.  It is unclear whether these marriages are state-sanctioned or are extralegal marriages performed through a religious or other institution.  There is no qualitative evidence regarding the number of state-sanctioned marriages of minors performed in California each year.  Several bills have been introduced in recent years to place age limit restrictions on marriages in California, as most states have, but each bill has failed.  This bill seeks to obtain information from state and local agencies so the number of underage marriages can be determined.

SB 899 – Firearm Relinquishment

This bill amends many code sections, including Family Code sections 3044 and 6389.  The sweeping change to many sections serves many objectives, including standardization of firearm and ammunition relinquishment procedures in DVROs, GVROs, civil harassment, workplace violence or postsecondary violence temporary restraining orders, elder abuse restraining orders, and protective orders issued during the pendency of criminal proceedings and following specified criminal convictions.  Many of the changes are procedural in nature, and phase in over time.

SB 1247 – Joint Dissolution Petition

Current law allows for a joint petition for summary dissolution under certain circumstances.  This bill amends and adds several Family Code sections to create a new method of filing a joint petition for dissolution of marriage or legal separation.  The goal is to provide a procedural method where the case is uncontested, but otherwise does not meet the summary dissolution criteria (e.g., where parties mediate a settlement).  The bill addresses collateral issues, for example procedure if the uncontested process changes to a contested one, and preservation of discovery rights.