One of the functions of the Family Law Executive Committee I appreciate most is our role in reviewing and commenting on pending legislation. This process entails our legislation chair, currently Justin O’Connell of Monterey, reviewing all legislation proposed in a session and determining which bills could have an impact on the practice of family law. During the current 2018-2019 session, that meant the FLEXCOM Legislation Committee reviewed 1,831 California Assembly bills and 791 bills introduced by the California Senate.
Once a bill is identified as one FLEXCOM should follow, it is assigned to a member or advisor of FLEXCOM to review and prepare a worksheet. Each of the regional liaisons also reviews the bills within their local areas and may prepare their own worksheets.
When FLEXCOM meets, we then dedicate the legislation portion of our agenda to reviewing the worksheets, discussing the legislation, and determining if FLEXCOM will be taking a position on a bill. It is a time-consuming process, and one that requires significant effort on the part of the members, advisors, and liaisons to FLEXCOM. However, it is also one of our more significant duties. FLEXCOM has a prominent stature within the legislature as a result of this function.
With that preface, I wanted to discuss three of the bills FLEXCOM has addressed in the current legislative term as well as the current status of those bills.
AB 455, Kiley: Ex Parte Orders
Assemblymember Kiley has introduced a bill that would amend Family Code 6320(a) to allow for trial courts to include in ex parte restraining orders provisions regarding connected devices within a home that can be remotely controlled. FLEXCOM supported this bill, with a request that the bill be amended to allow the court to order the restrained party to provide the passwords and access to the connected devices to the protected party. The bill did not make it out of the Assembly before April 26, 2019 deadline, which means it will not become legislation this year barring emergency action. However, since we are in the first year of the two-year legislative cycle, the bill may be taken up again in January 2020.
AB 1380, Obernolte: Premarital Agreements
This bill introduced by Assemblymember Obernolte would require that a premarital agreement executed on or after January 1, 2020, be presented in final form, with an advisement to seek independent legal counsel, at least 7 days before the final agreement was signed in order to be enforceable. FLEXCOM has voted to support this bill if the term “final draft” is clarified. We want to ensure that no substantive changes are made within the 7-day window, but that this change would not prevent the correction of typographical or spelling errors within the 7-day window.
SB 435, Moorlach: Family Law Evidence
Intended to provide a family law only exception to People v. Sanchez, this bill introduced by Senator Moorlach was a follow up to a similar failed bill from 2018. SB 435, as amended on April 11, 2019, would create a new family code section that would:
- Permit business records to be admitted without the testimony of the custodian of records; and,
- Allow expert witnesses to rely on hearsay statements deemed “trustworthy.”
The bill would also modify Family Code Section 3111 to allow evaluations to be received into evidence, including any hearsay evidence contained in the report. The parties would be allowed to subpoena and cross-examine the preparer of the report. FLEXCOM initially voted to support the bill if amended to remove daycare providers as inherently “trustworthy” sources of hearsay information. However, SB 435 was staunchly opposed by the judicial lobbies and did not make it out of the California Senate before the April 26, 2019 deadline.
Omne Trium Perfectum
Stephen D. Hamilton
Chair, Family Law Executive Committee of the
California Lawyers Association