Today's Law As Amended


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



As Amends the Law Today


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 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 a 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 interest 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 the their  evaluation. At least 10 days before a 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 a 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.
(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 interest 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:
(a) (1)  Adopt standards for full and partial court-connected court-ordered  evaluations, investigations, and assessments related to child custody.
(b) (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 shall in no way  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-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, 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 mental health professionals, are presumed to be 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) 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.