AMENDMENTS
TO THE CALIFORNIA FAMILY CODE 1999
(CHILD CUSTODY CODES)
 SECTION 1. Section 3653 of the Family
Code is amended to read:
3653. (a) An order modifying or
terminating a support order may be made retroactive to the date of the filing of the
notice of motion or order to show cause to modify or terminate, or to any subsequent date,
except as provided in subdivision (b) or by federal law (42 U.S.C. Sec. 666(a)(9))
(b) If an order modifying or
terminating a support order is entered due to the unemployment of either the support
obligor or the support obligee, the order shall be made retroactive to the later of the
date of the service on the opposing party of the notice of motion or order to show cause
to modify or terminate or the date of unemployment, subject to the notice requirements of
federal law (42 U.S.C. Sec. 666(a)(9)), unless the court finds good cause not to make the
order retroactive and states its reasons on the record.
 (c) If an order decreasing or
terminating a support order is entered retroactively pursuant to this section, the support
obligor shall nevertheless not be entitled to, and the support obligee shall have no
obligation to repay, any amounts previously paid by the support obligor pursuant to the
prior order that are in excess of the amounts due pursuant to the retroactive order.
SEC. 2. Section 4205 is added to the
Family Code, to read: 4205. Any notice from the district attorney requesting a meeting
with the support obligor for any purpose authorized under this part shall contain a
statement advising the support obligor of his or her right to have an attorney present at
the meeting. SEC. 3. Section 4351 of the Family Code is amended to read: 4351. (a) In any
proceeding where the court has entered an order pursuant to Section 4350, the court may
also refer the matter of enforcement of the spousal support order to the district
attorney. The district attorney may bring those enforcement proceedings as the district
attorney in the district attorney's discretion determines to be appropriate.
(b) Notwithstanding subdivision (a) in
any case in which the district attorney is required to appear on behalf of a welfare
recipient in a proceeding to enforce an order requiring payment of child support, the
district attorney shall also enforce any order requiring payment to the welfare recipient
of spousal support that is in arrears.
(c) Nothing in this section shall be
construed to prohibit the district attorney from bringing an action or initiating process
to enforce or punish the failure to obey an order for spousal support under any provision
of law that empowers the district attorney to bring an action or initiate a process,
whether or not there has been a referral by the court pursuant to this chapter.
(d) Any notice from the district
attorney requesting a meeting with the support obligor for any purpose authorized under
this part shall contain a statement advising the support obligor of his or her right to
have an attorney present at the meeting.
SEC. 4. Section 5235 of the Family Code is amended to read: 5235.
(a) The employer shall continue to
withhold and forward support as required by the assignment order until served with notice
terminating the assignment order. If an employer withholds support as required by the
assignment order, the obligor shall not be held in contempt or subject to criminal
prosecution for nonpayment of the support that was withheld by the employer but not
received by the obligee. If the employer withheld the support but failed to forward the
payments to the obligee, the employer shall be liable for the payments, including
interest, as provided in Section 5241.
(b) Within 10 days of service of a
substitution of payee on the employer, the employer shall forward all subsequent support
to the governmental entity or other payee that sent the substitution.
(c) The employer shall send the
amounts withheld to the obligee within the time frame specified in federal law and shall
report to the obligee the date on which the amount was withheld from the obligor's wages.
(d) The employer may deduct from the
earnings of the employee the sum of one dollar ($1) for each payment made pursuant to the
order.
 (e) Once the Child Support Centralized
Collection and Distribution Unit as required by Section 11475.4 of the Welfare and
Institutions Code is operational, the employer shall send all earnings withheld pursuant
to this chapter to the Child Support Centralized Collection and Distribution Unit instead
of the obligee.
SEC. 5. Section 5241 of the Family
Code is amended to read: 5241.
(a) An employer who willfully fails to
withhold and forward support pursuant to a currently valid assignment order entered and
served upon the employer pursuant to this chapter is liable to the obligee for the amount
of support not withheld, forwarded, or otherwise paid to the obligee, including any
interest thereon.
(b) If an employer withholds support
as required by the assignment order, the obligor shall not be held in contempt or subject
to criminal prosecution for nonpayment of the support that was withheld by the employer
but not received by the obligee.
(c) In addition to any other penalty
or liability provided by law, willful failure by an employer to comply with an assignment
order is punishable as a contempt pursuant to Section 1218 of the Code of Civil Procedure.
(d) If an employer withholds support,
as required by the assignment order, but fails to forward the support to the obligee, the
district attorney shall take appropriate action to collect the withheld sums from the
employer. This provision shall not be construed to expand or limit the duties and
obligations of the Labor Commissioner, as set forth in Section 200 and following of the
Labor Code.
SEC. 6. Section 11350.1 of the Welfare
and Institutions Code is amended to read:
11350.1.
(a) Notwithstanding any other statute, in any action brought by the district attorney for
the support of a minor child or children, the action may be prosecuted in the name of the
county on behalf of the child, children, or a parent of the child or children. The parent
who has requested or is receiving support enforcement services of the district attorney
shall not be a necessary party to the action but may be subpoenaed as a witness. Except as
provided in subdivision (e), in an action under this section there shall be no joinder of
actions, or coordination of actions, or cross-complaints, and the issues shall be limited
strictly to the question of parentage, if applicable, and child support, including an
order for medical support. A final determination of parentage may be made in any action
under this section as an incident to obtaining an order for support. An action for support
or parentage pursuant to this section shall not be delayed or stayed because of the
pendency of any other action between the parties.
(b) Judgment in an action brought
pursuant to this section, and in an action brought pursuant to Section 11350, if at issue,
may be rendered pursuant to a noticed motion, that shall inform the defendant that in
order to exercise his or her right to trial, he or she must appear at the hearing on the
motion. If the defendant appears at the hearing on the motion, the court shall inquire of
the defendant if he or she desires to subpoena evidence and witnesses, if parentage is at
issue and genetic tests have not already been conducted whether he or she desires genetic
tests, and if he or she desires a trial. If the defendant's answer is in the affirmative,
a continuance shall be granted to allow the defendant to exercise those rights. A
continuance shall not postpone the hearing to more than 90 days from the date of service
of the motion. If a continuance is granted, the court may make an order for temporary
support without prejudice to the right of the court to make an order for temporary support
as otherwise allowed by law.
(c) In any action to enforce a spousal
support order the action may be pled in the name of the county in the same manner as an
action to establish a child support obligation. The same restrictions on joinder of
actions, coordination of actions, cross-complaints, and delay because of the pendency of
any other action as relates to actions to establish a child support obligation shall also
apply to actions to enforce a spousal support order.
(d) Nothing contained in this section
shall be construed to prevent the parties from bringing an independent action under
the Family Code and litigating the issues of support, custody, visitation, or protective
orders. In that event, any support, custody, visitation, or protective order issued by the
court in an action pursuant to this section shall be filed in the action commenced under
the Family Code and shall continue in effect until modified by a subsequent order of the
court. To the extent that the orders conflict, the court order last issued shall supersede
all other orders and be binding upon all parties in that action.
 (e) (1) After a support order,
including a temporary support order and an order for medical support only, has been
entered in an action brought pursuant to this section, the parent who has requested or is
receiving support enforcement services of the district attorney shall become a party to
the action brought pursuant to this section, only in the manner and to the extent provided
by this section, and only for the purposes allowed by this section.
(2) Notice of the parent's status as a
party shall be given to the parent by the district attorney in conjunction with the notice
required by subdivision (e) of Section 11478.2. The complaint shall contain this notice.
Service of the complaint on the parent in compliance with Section 1013 of the Code of
Civil Procedure, or as otherwise provided by law, shall constitute compliance with this
section. In all actions commenced under the procedures and forms in effect on or before
December 31, 1996, the parent who has requested or is receiving support enforcement
services of the district attorney shall not become a party to the action until he or she
is joined as a party pursuant to an ex parte application or noticed motion for joinder
filed by the district attorney or a noticed motion filed by either parent. The district
attorney shall serve a copy of any order for joinder of a parent obtained by the district
attorney's application on both parents in compliance with Section 1013 of the Code of
Civil Procedure.
(3) The parent who has requested or is
receiving support enforcement services of the district attorney is a party to an action
brought under this section for issues relating to the support, custody, and visitation of
a child, and for restraining orders, and for no other purpose. The district attorney shall
not be required to serve or receive service of papers, pleadings, or documents, or
participate in, or attend any hearing or proceeding relating to issues of custody or
visitation, except as otherwise required by law. Orders concerning custody and visitation
may be made in an action pursuant to this subdivision only if orders concerning custody
and visitation have not been previously made by a court of competent jurisdiction in this
state or another state and the court has jurisdiction and is the proper venue for custody
and visitation determinations. All issues regarding custody and visitation shall be heard
and resolved in the manner provided by the Family Code.
Except as otherwise provided by law,
the district attorney shall control support and parentage litigation brought pursuant to
this section, and the manner, method, and procedures used in establishing parentage and in
establishing and enforcing support obligations unless and until the parent who requested
or is receiving support enforcement services has requested in writing that the
district attorney close his or her case and the case has been closed in accordance with
federal regulation.
 (f) (1) A parent who has requested or
is receiving support enforcement services of the district attorney may take independent
action to modify a support order made pursuant to this section while support enforcement
services are being provided by the district attorney. The parent shall serve the district
attorney with notice of any action filed to modify the support order and provide the
district attorney with a copy of the modified order within 15 calendar days after the date
the order is issued.
(2) A parent who has requested or is
receiving support enforcement services of the district attorney may take independent
action to enforce a support order made pursuant to this section while support enforcement
services are being provided by the district attorney with the written consent of the
district attorney. At least 30 days prior to filing an independent enforcement action, the
parent shall provide the district attorney with written notice of the parent's intent to
file an enforcement action that includes a description of the type of enforcement action
the parent intends to file. Within 30 days of receiving the notice, the district attorney
shall either provide written consent for the parent to proceed with the independent
enforcement action or notify the parent that the district attorney objects to the parent
filing the proposed independent enforcement action. The district attorney may object only
if the district attorney is currently using an administrative or judicial method to
enforce the support obligation or if the proposed independent enforcement action would
interfere with an investigation being conducted by the district attorney. If the district
attorney does not respond to the parent's written notice within 30 days, the district
attorney shall be deemed to have given consent.
(3) The court shall order that all
payments of support shall be made to the district attorney in any action filed under this
section by the parent who has requested, or is receiving, support enforcement services of
the district attorney unless support enforcement services have been terminated by the
district attorney by case closure as provided by federal law. Any order obtained by a
parent prior to support enforcement services being terminated in which the district
attorney did not receive proper notice pursuant to this section shall be voidable upon the
motion of the district attorney.
(g) Any notice from the district
attorney requesting a meeting with the support obligor for any purpose authorized under
this section shall contain a statement advising the support obligor of his or her right to
have an attorney present at the meeting.
(h) For the purpose of this section,
"a parent who is receiving support enforcement services" includes a parent who
has assigned his or her rights to support pursuant to Section 11477.
(i) The Judicial Council shall develop
forms to implement this section. These forms shall be available no later than July 1,
1998.
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Family Law in California
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