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SB-435 Family law: evidence.(2019-2020)

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Date Published: 04/11/2019 09:00 PM
SB435:v98#DOCUMENT

Amended  IN  Senate  April 11, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 435


Introduced by Senator Moorlach

February 21, 2019


An act to amend Section Sections 3111 and 3117 of, and to add Part 10 (commencing with Section 2670) to Division 7 of, the Family Code, and to amend Section 68555 of the Government Code, relating to family law.


LEGISLATIVE COUNSEL'S DIGEST


SB 435, as amended, Moorlach. Family law: evidence.
Existing law establishes a hearsay rule that evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated is inadmissible, except as specified.
This bill would allow a party in a proceeding for dissolution of marriage or for legal separation to rely on hearsay evidence in establishing the character and value of separate and community property in certain circumstances, including when a hearsay statement is relied upon by an expert in forming the expert’s opinion if the hearsay statement is of the type routinely relied upon by the expert and the statement has been evaluated by the expert and determined to be trustworthy.
Existing law authorizes the court, in a contested proceeding involving child custody or visitation rights, to appoint a child custody evaluator to conduct a child custody evaluation in cases in which the court determines it is in the best interests of the child. Existing law requires the Judicial Council to adopt standards for full and partial court-connected evaluations, investigations, and assessments related to child custody.
This bill would require the Judicial Council, by January 1, 2021, to include within those standards, standards for recommendations made by private child custody recommending counsel counseling (CCRC) professionals appointed by the court to make recommendations relating to child custody and visitation rights. Under the bill, a report based on a court-connected court-ordered evaluation, private CCRC recommendation, investigation, or assessment prepared in compliance with those standards and any hearsay evidence contained in the report, would be admissible in court and constitute competent evidence if the report is provided to the court and to all parties or their counsel at least 10 days prior to the custody hearing.
The bill would require the Judicial Council, on or before January 1, 2021, to promulgate a statewide rule of court requiring a person conducting an evaluation, investigation, or assessment in a child custody case to make and maintain a detailed record of all interviews conducted during the evaluation, investigation, or assessment process and to maintain the interview records until the case is resolved by final order.
Existing law requires the child custody evaluator to file a written confidential report of their evaluation with the court and allows the report to be received in evidence on stipulation of the parties.
This bill would allow the report to be received in evidence without regard to the stipulation of the parties.
Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters.
This bill would also require the Judicial Council to establish judicial training programs promulgate a rule of court requiring training for individuals who conduct court evaluations, investigations, and assessments in child custody cases, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 (a) The Legislature finds and declares that it is the policy of the State of California to avoid needlessly complicating the process of proof, generating delay, increasing costs, and in many cases, creating a nearly impossible burden to obtain admissible evidence in family law proceedings.
(b) It is, therefore, the intent of the Legislature to create an exception to People v. Sanchez (2016) 63 Cal.4th 665, as it applies to proof in family law proceedings.

SEC. 2.

 Part 10 (commencing with Section 2670) is added to Division 7 of the Family Code, to read:

PART 10. Evidence

2670.
 (a) In establishing the character and value of separate and community property, a party may rely on hearsay evidence, as defined in subdivision (a) of Section 1200 of the Evidence Code, in accordance with the standards set forth in subdivisions (b) and (c). subdivision (b).
(b) (1) Business records used in the ordinary course of business may be authenticated by the proponent and admitted into evidence without the need for the custodian of records or other qualified witness to testify to the identity and mode of preparation as otherwise required by Section 1271 of the Evidence Code.
(2) Hearsay statements made orally, or in writing, and relied upon by an expert in forming the expert’s opinion, may be admitted into evidence upon the testimony of the expert that those types of hearsay statements are routinely relied upon by the expert in the formulation of the expert’s opinion and have been evaluated by the expert and determined to be trustworthy.
(3) A party that challenges the reliability of hearsay evidence has the burden of persuading the court that the hearsay evidence is unreliable and should be excluded from evidence. If the hearsay evidence is excluded in connection with an expert opinion, the expert may, if there remains a proper basis for the expert’s opinion, state the expert’s opinion after excluding from consideration the inadmissible hearsay.

SEC. 3.

 Section 3111 of the Family Code is amended to read:

3111.
 (a) In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child. The child custody evaluation shall be conducted in accordance with the standards adopted by the Judicial Council pursuant to Section 3117, and all other standards adopted by the Judicial Council regarding child custody evaluations. If directed by the court, the court-appointed child custody evaluator shall file a written confidential report on his or her their evaluation. At least 10 days before any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. A child custody evaluation, investigation, or assessment, and any resulting report, may be considered by the court only if it is conducted in accordance with the requirements set forth in the standards adopted by the Judicial Council pursuant to Section 3117; 3117, however, this does not preclude the consideration of a child custody evaluation report that contains nonsubstantive or inconsequential errors or both.
(b) The report shall not be made available other than as provided in subdivision (a) or Section 3025.5, or as described in Section 204 of the Welfare and Institutions Code or Section 1514.5 of the Probate Code. Any information obtained from access to a juvenile court case file, as defined in subdivision (e) of Section 827 of the Welfare and Institutions Code, is confidential and shall only be disseminated as provided by paragraph (4) of subdivision (a) of Section 827 of the Welfare and Institutions Code.
(c) The report may be received in evidence on stipulation of all interested parties and and, in accordance with subdivision (c) of Section 3117, is competent evidence as to all matters contained in the report.
(d) If the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party. The sanction shall be in an amount sufficient to deter repetition of the conduct, and may include reasonable attorney’s fees, costs incurred, or both, unless the court finds that the disclosing party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court shall not impose a sanction pursuant to this subdivision that imposes an unreasonable financial burden on the party against whom the sanction is imposed. This subdivision shall become operative on January 1, 2010.
(e) The Judicial Council shall, by January 1, 2010, do the following:
(1) Adopt a form to be served with every child custody evaluation report that informs the report recipient of the confidentiality of the report and the potential consequences for the unwarranted disclosure of the report.
(2) Adopt a rule of court to require that, when a court-ordered child custody evaluation report is served on the parties, the form specified in paragraph (1) shall be included with the report.
(f) For purposes of this section, a disclosure is unwarranted if it is done either recklessly or maliciously, and is not in the best interests of the child.

SEC. 3.SEC. 4.

 Section 3117 of the Family Code is amended to read:

3117.
 (a) The Judicial Council shall, by January 1, 1999, do both of the following:
(1) Adopt standards for full and partial court-connected court-ordered evaluations, investigations, and assessments related to child custody.
(2) Adopt procedural guidelines for the expeditious and cost-effective cross-examination of court-appointed investigators, including, but not limited to, the use of electronic technology whereby the court-appointed investigator may not need to be present in the courtroom. These guidelines do not limit the requirement that the court-appointed investigator be available for the purposes of cross-examination. These guidelines shall also provide for written notification to the parties of the right to cross-examine these investigators after the parties have had a reasonable time to review the investigator’s report.
(b) The Judicial Council shall, on or before January 1, 2021, include within the standards adopted pursuant to paragraph (1) of subdivision (a), standards for recommendations made by child custody recommending counseling (CCRC) professionals appointed by the court to make recommendations to the court in cases in which the parties cannot reach agreement on custody and visitation rights.
(c) (1) A report based on a full or partial court-connected court-ordered evaluation, CCRC recommendation, investigation, or assessment prepared in compliance with the standards adopted pursuant to subdivisions (a) and (b) and any hearsay evidence contained in a report, is admissible in court and constitutes competent evidence if the report is provided to the court and to all parties or their counsel at least 10 days prior to the custody hearing. The report may be provided on shorter notice and be admissible in court as competent evidence if the 10-day timeline is waived by all parties.
(2) The preparer of the report shall be available for cross-examination upon a timely subpoena by a party at that party’s expense.
(3) A party may introduce admissible evidence and subpoena and cross-examine a witness whose statement was relied upon by the preparer in forming an opinion, in order to contradict, explain, or place the statement into context, or to provide the court evidence as to the weight that should be accorded the statement.
(4) If the hearsay declarant is a witness and it is clear that the hearsay was significantly relied on by the preparer in forming an opinion, the proponent of the hearsay evidence shall have the burden to produce the witness to testify and be cross-examined.
(5) Hearsay statements from a professional who interacts with families and children, including a teacher, doctor, optometrist, daycare provider, or mental health professional are presumed to be admissible, subject to a party’s right to challenge the statement by cross-examination. Hearsay statements contained in reports, including medical and dental records, school notices, report cards, progress reports, and normal business records of daycare providers and mental health professionals, are presumed to be reliable. admissible.
(d) On or before January 1, 2021, the Judicial Council shall promulgate a statewide rule of court requiring a person conducting an evaluation, investigation, or assessment in a child custody case to make and maintain a detailed record of all interviews conducted during the evaluation, investigation, or assessment process. The record shall be made during or immediately following each interview. Interview records shall be maintained in the preparer’s case file until the case is resolved by final order, including any ruling on appeal.

SEC. 4.SEC. 5.

 Section 68555 of the Government Code is amended to read:

68555.
 (a) The Judicial Council shall establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council. The training programs shall include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence. The training programs shall include instruction in all aspects of domestic violence, including, but not limited to, the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

(b)The Judicial Council shall establish judicial training programs for individuals who conduct court evaluations, investigations, and assessments in child custody cases. The training programs shall provide specific training on investigative and evaluation processes, the role of a forensic expert, and education on family court procedures.

(b) On or before January 1, 2021, the Judicial Council shall promulgate a statewide rule of court requiring a person conducting an evaluation, investigation, or assessment in a child custody case to have obtained specified training on investigative and evaluation processes, the role of a forensic expert, and education on family court procedures.