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AB-2081 Child support: orders and enforcement.(1999-2000)

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AB2081:v98#DOCUMENT

Amended  IN  Assembly  April 24, 2000

CALIFORNIA LEGISLATURE— 1999–2000 REGULAR SESSION

Assembly Bill
No. 2081

Introduced  by  Assembly Member Wright

February 22, 2000

An act to amend Sections 3751, 4058 4504, 17402, and 17416 of, and to add Sections 3651.5 and 17527 to, the Family Code, and to add Sections 488.2 and 669.2 to the Insurance Code, relating to child support.


LEGISLATIVE COUNSEL'S DIGEST


AB 2081, as amended, Wright. Child support: orders and enforcement.
(1) Existing law authorizes the court to modify or terminate a support order at any time as the court deems necessary.
This bill would, with respect to a child support order for a child receiving public assistance, authorize the court to modify or terminate the order or relieve the obligor of arrearages if the support obligor is age 55 years or older, the obligee is age 23 years or older and other specified conditions exist.
(2) Under existing law, if current child support has been ordered, the court must require either or both parents to maintain health insurance for the supported child if that insurance is available at no cost or at a reasonable cost, as specified.

This bill would prohibit the court from requiring a noncustodial parent to pay for health insurance for the child if the child is enrolled in the Medi-Cal program.

(3)Under existing law, calculations of child support obligations are based, in part, upon the “annual gross income of each parent,” which is defined to include, among other things, disability and social security benefits.

This bill would exclude from the definition of “annual gross income of each parent,” for these purposes, the amount of any social security disability benefits received by the noncustodial parent if the supported child is also receiving those benefits.

(4)

This bill would provide that the obligor’s child support obligation shall be reduced to reflect the amount paid by the obligor to obtain health insurance coverage if the obligor is required to pay to obtain or maintain health insurance for the child or children.
(3) Existing law provides that if a court has ordered a noncustodial parent to pay child support, payment for the support of the child made by the federal government pursuant to the Social Security Act or the Railroad Retirement Act because of the retirement or disability of the noncustodial parent and transmitted to the custodial parent shall be credited toward the amount ordered by the court to be paid for child support.
This bill would revise that provision to include payments made by the Veteran’s Administration. The bill would also require a court to order the noncustodial parent to apply for those benefits where the court determines that the child would be eligible for those payments. The bill would provide that if the custodial parent fails to apply for any of the specified federal benefits to which the child is entitled by virtue of the custodial parent’s retirement or disability those benefits shall be deemed to have been received for the child for the purposes of the above-described credit.
(4) Existing law provides that, if a child is receiving public assistance due to separation from or desertion by one or both parents, the noncustodial parent is obligated to the county for amounts specified, or deemed to be specified, in a support order less any amounts paid by the noncustodial parent. Existing law provides procedures for collection of child support arrearages by the state and the local child support agency.
This bill would provide that, in these circumstances, if and so long as the noncustodial parent resumes custody voluntarily resumes providing custodial care and support, accrual of the obligation to the county and efforts to collect arrearages shall be suspended.
(5) Existing law provides that a judgment for child or spousal support, or both, shall be entered based on an agreement between a local child support agency and a noncustodial parent only if the noncustodial parent (1) was represented by counsel, who certifies that the parent understands and agrees to the agreement, or (2) appears before the judge who finds that the noncustodial parent understands the agreement.
This bill would instead provide that a judgment shall be entered based on that agreement only if (1) the noncustodial parent signed a specified notice prior to any discussions with the local child support agency, (2) and the agency consulted with the noncustodial parent or counsel or both or the court facilitator regarding defenses or limiting circumstances, as specified, and (3) or (2) the noncustodial parent was represented by counsel or by a court facilitator who certifies that his or her client the obligor understands and agrees to the judgment, as specified. The bill would also provide that a judgement shall not be entered, or if previously entered, shall be revoked or modified, and that all of the noncustodial parent’s rights and defenses shall be preserved, if these requirements are not met. By imposing new duties on the local child support agency, this bill would create a state-mandated local program.
(6) Existing law authorizes the Department of Motor Vehicles to refuse to issue or renew the driver’s license of a support obligor who is delinquent in the payment of child support.
This bill would prohibit an insurer from failing to renew or increasing the premium on an automobile insurance policy because the insured’s drivers license has been suspended for that reason. The bill would state that this provision is declaratory of existing law. (7) 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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3651.5 is added to the Family Code, to read:

3651.5.
 With respect to an order for support of a child who is receiving public assistance, the court may, on its own motion or on the motion of a party, enter an order modifying or terminating a support order, or relieving the support obligor of any or all unpaid arrearages, or both, if it finds that all of the following conditions exists:
(a) The support obligor is 55 years of age or older.
(b) The child or children receiving the support are 23 years of age or older.
(c) The income of the support obligor is less than 200 percent of the federal poverty level.
(d) The relief requested does not exceed the amount owed for the reimbursement to the state and the county for public assistance paid for the support of the child or children.
(e) The court finds, on the record, that the total amount of money paid by the support obligor exceeds the original principal amount of the order or that other facts exist that necessitate, in the interest of justice, the entry of the order.
This section is not applicable to an order for the support of an adult child described in Section 3910.

SEC. 2.

 Section 3751 of the Family Code is amended to read:

3751.
 (a) (1) Support orders issued or modified pursuant to this chapter shall include a provision requiring the child support obligor to keep the local child support agency informed of whether the obligor has health insurance coverage at reasonable cost and, if so, the health insurance policy information.
(2) In any case in which an amount is set for current support, the court shall require that health insurance coverage for a supported child shall be maintained by either or both parents if that insurance is available at no cost or at reasonable cost to the parent. Health insurance coverage shall be rebuttably presumed to be reasonable in cost if it is employment-related group health insurance or other group health insurance, regardless of the service delivery mechanism. The actual cost of the health insurance to the obligor shall be considered in determining whether the cost of insurance is reasonable. If the court determines that the cost of health insurance coverage is not reasonable, the court shall state its reasons on the record.
(b) If the court determines that health insurance coverage is not available at no or reasonable cost, the court’s order for support shall contain a provision that specifies that health insurance coverage shall be obtained if it becomes available at no or reasonable cost. Upon health insurance coverage at no or reasonable cost becoming available to a parent, the parent shall apply for that coverage.

(c)Notwithstanding subdivisions (a) and (b), if the child is currently enrolled and receiving health benefits under the Medi-Cal program, the court shall not require a noncustodial parent to apply for or maintain any health insurance unless that insurance is available at no cost to the noncustodial parent.

(c) If the obligor is required to pay to obtain or maintain health insurance coverage for the child and the obligor’s net income is less than 200 percent of the federal poverty level, the obligor’s child support obligation shall be reduced to reflect the amount paid by the obligor to obtain health insurance coverage.

SEC. 3.Section 4058 of the Family Code is amended to read:
4058.

(a)The annual gross income of each parent means income from whatever source derived, except as specified in subdivisions (c) and (d) and includes, but is not limited to, the following:

(1)Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.

(2)Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business.

(3)In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.

(b)The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.

(c)Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party’s gross or net income.

(d)Notwithstanding paragraph (1) of subdivision (a), annual gross income of a noncustodial parent does not include any disability benefits received by that parent under Title XVI of the federal Social Security Act (42 U.S.C. Sec. 1381 et seq.) if the child is also receiving benefits under that title.

Section 4504 of the Family Code is amended to read:

4504.
 (a) If the court has ordered a noncustodial parent to pay for the support of a child, payments for the support of the child made by the federal government pursuant to the Social Security Act, or the Railroad Retirement Act, or by the Veteran’s Administration because of the retirement or disability of the noncustodial parent and transmitted to received by the custodial parent or other child support obligee each month shall be credited toward the amount ordered by the court to be paid for that month by the noncustodial parent for support of the child unless the payments made by the federal government were taken into consideration by the court in determining the amount of support to be paid. If a lump-sum payment which represents payments for more than one month is transmitted to received by the custodial parent or other child support obligee, credit shall be given for each month for which the lump-sum payment was made.
(b) The court shall determine if the child is receiving federal payments pursuant to the programs listed in subdivision (a). If the child is not receiving payments under a program described in subdivision (a) and the court determines that there is a reasonable basis to believe the child would be eligible therefor it shall order the noncustodial parent to promptly apply for those benefits and, upon qualification, credit shall be given for those benefits in connection with the obligation of the noncustodial parent pursuant to subdivision (a).
(c) If the custodial parent fails to apply for the Social Security, Railroad Retirement Act, or Veteran’s Administration benefits to which the child is entitled by virtue of the custodial parent’s retirement or disability, those benefits shall be deemed to have been received by the custodial parent for the child for the purposes of the credit required by subdivision (a).

SEC. 4.

 Section 17402 of the Family Code is amended to read:

17402.
 (a) In any case of separation or desertion of a parent or parents from a child or children that results in aid under Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code being granted to that family, the noncustodial parent or parents shall be obligated to the county for an amount equal to the following:
(1) The amount specified in an order for the support and maintenance of the family during the period of separation or desertion issued by a court of competent jurisdiction; or in the absence of a court order, the amount specified in paragraph (2).
(2) The amount of support that would have been specified in an order for the support and maintenance of the family during the period of separation or desertion, but not to exceed one year prior to the date of the filing of the petition or complaint. However, the amount in excess of the aid paid to the family shall not be retained by the county, but disbursed to the family.
(3) The obligation shall be reduced by any amount actually paid by the parent directly to the custodian of the child or to the local child support agency of the county in which the child is receiving aid during the period of separation or desertion for the support and maintenance of the family.
(b) The local child support agency shall take appropriate action pursuant to this section as provided in subdivision (l) of Section 17400. The local child support agency may establish liability for child support as provided in subdivision (a) when public assistance was provided by another county or by other counties.
(c) The amount of the obligation established under paragraph (2) of subdivision (a) shall be determined by using the appropriate child support guidelines currently in effect. If one parent remains as a custodial parent, the guideline support shall be computed in the normal manner. If neither parent remains as a custodial parent, the support shall be computed by combining the noncustodial parents’ incomes and placing the figure obtained in the column for noncustodial parent. A zero shall be placed in the column for the custodial parent and the amount of guideline support resulting shall be proportionately shared between the parents as directed by the court. The parents shall pay the amount of support specified in the support order to the local child support agency.
(d) Accrual of the obligation to the county under this section shall be suspended if and for so long as the noncustodial parent or parents resume custody and support of the child or children or when the child or children are otherwise no longer receiving public assistance voluntarily resume providing custodial care to and support of the child or children without the entry or modification of an order granting custody to that parent or parents. Section 3602 shall apply to the enforcement of any order or judgement obtained pursuant to this section.

SEC. 5.

 Section 17416 of the Family Code is amended to read:

17416.
 (a) In any case where the local child support agency has undertaken enforcement of support, the local child support agency may enter into an agreement with the noncustodial parent, on behalf of a minor child or children, a spouse, or former spouse for the entry of a judgment without action determining paternity, if applicable, and for periodic child and spousal support payments based on the noncustodial parent’s current reasonable ability to pay or, if for spousal support, an amount previously ordered by a court of competent jurisdiction. An agreement for entry of a judgment under this section may be executed prior to the birth of the child and may include a provision that the judgment is not to be entered until after the birth of the child.
(b) A judgment based on the agreement shall be entered only if all either of the following requirements are described in paragraph (1) or (2) is satisfied:
(1) (A) Prior to any discussions with the local child support agency, the noncustodial parent signed a statement acknowledging receipt of a notice, printed in at least 16-point type, stating: “You have a right to talk to an attorney, a court facilitator, or any other person of your choosing before speaking to a representative of this agency. There are no penalties if you do not agree to a settlement with this agency regarding your support obligation. If you request, the The agency representative will inform you of the availability of any free or low-cost legal services to assist you before you begin discussions with the representative.” representative. You will also be given the family law scale which shows how much you would usually be expected to pay in child support given your income and your dependents.”

(2)

(B) The local child support agency has consulted with the noncustodial parent or his or her attorney, or both, or the court facilitator assisting the noncustodial parent and made a reasonable effort to determine if any defenses or circumstances exist for limiting or reducing the amount of support payable by the noncustodial parent or the period covered by any retroactive award.

(3)

(C) The local child support agency representative has signed a certificate stating: “I have examined the proposed judgment, have reviewed and considered the defenses available to, and the responsibilities of, the obligor, and have personally or through an interpreter, in a language understandable by the obligor, fully advised the obligor regarding his or her defenses and responsibilities in connection with this matter and the consequences of signing or not signing the agreement for the entry of the judgment and the obligor, after being so advised, has agreed to the entry of the judgment.”
(2) The noncustodial parent has been represented by legal counsel and the attorney or has been assisted by a court facilitator and the attorney or the court facilitator has signed a certificate stating: “I have examined the proposed judgment and have personally or through an interpreter, in a language understandable by client the obligor, fully advised my client the obligor concerning his or her rights in connection with this matter and the consequences of signing or not signing the agreement for the entry of the judgment and my client. The obligor, after being so advised, has agreed to the entry of the judgment.” judgment. I have examined the obligor’s current income and his or her income for any period covered by the proposed judgment and have determined that the period covered by the proposed judgment is accurate and that the current monthly support and the support awarded retroactively is reasonable.”
(c) The clerk shall file the agreement, together with the certificate of the attorney or the local child support agency representative, without the payment of any fees or charges. If the requirements of this section are satisfied, the court shall enter judgment thereon without action. The provisions of Article 4 (commencing with Section 4200) of Chapter 2 of Part 2 of Division 9 or Chapter 4 (commencing with Section 4350) of Part 3 of Division 9 shall apply to the judgment. A judgment for support so entered may be enforced by any means by which any other judgment for support may be enforced.
(d) Upon request of the local child support agency, the noncustodial parent, or his or her counsel in any case under this section, the clerk shall set the matter for hearing by the court. The hearing shall be held within 10 days after the clerk receives the request. The local child support agency may require the person who signed the agreement for the entry of judgment to attend the hearing by process of subpoena in the same manner as the attendance of a witness in a civil action may be required. The presence of the person who signed the agreement for entry of judgment at the hearing shall constitute the presence of the person in court at the time the order is pronounced for the purposes of Section 1209.5 of the Code of Civil Procedure if the requirements of this section are satisfied. If it is determined at the hearing, or in any subsequent proceedings, that the requirements of this section were not satisfied, the judgment shall not be entered or, if already entered, shall be modified or revoked as provided in subdivision (f) and the noncustodial parent shall have all defenses and rights that were available to him or her at the time the agreement was signed.
(e) The local child support agency shall cause the following to be served, in the manner specified in Section 415.10, 415.20, 415.30, or 415.40 of the Code of Civil Procedure, upon the person who signed the agreement for entry of the judgment and shall file proof of service thereof with the court:
(1) A copy of the judgment as entered.
(2) If the judgment includes an order for child or spousal support payments, a notice stating the substance of the following: “The court has continuing authority to make an order increasing or decreasing the amount of the child or spousal support payments. You have the right to request that the court order the child and spousal support payments be decreased or eliminated entirely.”
(f) An order for child and spousal support included in a judgment entered under this section may be modified or revoked as provided in Article 1 (commencing with Section 3650) of Chapter 6 of Part 1 of Division 9 and in (1) Article 1 (commencing with Section 4000) of Chapter 2 of Part 2 of Division 9 or (2) Chapter 2 (commencing with Section 4320) and Chapter 3 (commencing with Section 4330) of Part 3 of Division 9. The court may modify the order to make the support payments payable to a different person.
(g) For the purposes of this section, in making a determination of the noncustodial parent’s current reasonable ability to pay, any relevant circumstances set out in Section 4005 shall be considered.
(h) After arrest and before plea or trial, or after conviction or plea of guilty, under Section 270 of the Penal Code, if the defendant appears before the court in which the criminal action is pending and the requirements of paragraph (1), (2), and (3) of subdivision (b) have been satisfied, the court may suspend proceedings or sentence in the criminal action, but this does not limit the later institution of a civil or criminal action or limit the use of any other procedures available to enforce the judgment entered pursuant to this section.
(i) Nothing in this section applies to a case where a civil action has been commenced.

SEC. 6.

 Section 17527 is added to the Family Code, to read:

17527.
  Notwithstanding any other provision of this article, the local child support agency shall suspend enforcement of arrearages with respect to an obligation under Section 17402 if and so long as the noncustodial parent resumes and continues custody and support of the child or children. parent voluntarily resumes providing custodial care to and support of the child or children without the entry or modification of an order granting custody to that parent.

SEC. 7.

 Section 488.2 is added to the Insurance Code, to read:

488.2.
 (a) No insurer shall, in issuing or renewing a private passenger automobile insurance policy, increase the premium on that policy for the reason that the insured or applicant for insurance has, at any time, had his or her driver’s license suspended under Section 17520 of the Family Code.
(b) Any insured or applicant injured by a violation of this section may bring an action for the recovery of damages. Judgment shall be entered for two times the amount at which the actual damages are assessed plus reasonable attorneys’ fees and costs. The foregoing shall not be deemed to limit or preclude the imposition of any administrative, civil, or criminal fines or penalties that may otherwise be applicable to a violation of this section.
(c) The provisions of subdivision (a) are declaratory of existing law.

SEC. 8.

 Section 669.2 is added to the Insurance Code, to read:

669.2.
 (a) No insurer shall fail to renew any private automobile insurance policy for the reason that the insured insurance has, at any time, had his or her driver’s license suspended under Section 17520 of the Family Code.
(b) Any insured injured by a violation of this section may bring an action for the recovery of damages. Judgment shall be entered for two times the amount at which the actual damages are assessed plus reasonable attorneys’ fees and costs. The foregoing shall not be deemed to limit or preclude the imposition of any administrative, civil, or criminal fines or penalties that may otherwise be applicable to a violation of this section.
(c) The provisions of subdivision (a) are declaratory of existing law.

SEC. 9.

 Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.