Bill Text: CA SB1206 | 2011-2012 | Regular Session | Chaptered
Bill Title: Child abduction prevention.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2012-09-07 - Chaptered by Secretary of State. Chapter 276, Statutes of 2012. [SB1206 Detail]
Download: California-2011-SB1206-Chaptered.html
BILL NUMBER: SB 1206 CHAPTERED
BILL TEXT
CHAPTER 276
FILED WITH SECRETARY OF STATE SEPTEMBER 7, 2012
APPROVED BY GOVERNOR SEPTEMBER 7, 2012
PASSED THE SENATE AUGUST 22, 2012
PASSED THE ASSEMBLY AUGUST 20, 2012
AMENDED IN ASSEMBLY AUGUST 6, 2012
AMENDED IN ASSEMBLY JULY 2, 2012
AMENDED IN SENATE MAY 1, 2012
AMENDED IN SENATE APRIL 12, 2012
INTRODUCED BY Senator Walters
FEBRUARY 22, 2012
An act to amend Sections 2040 and 3134.5 of the Family Code,
relating to child abduction prevention.
LEGISLATIVE COUNSEL'S DIGEST
SB 1206, Walters. Child abduction prevention.
(1) Existing law requires, upon the commencement of proceedings
for dissolution or nullity of marriage or legal separation of the
parties, that the summons contain a temporary restraining order
restraining both parties from, among other things, removing the minor
child or children of the parties, if any, from the state without the
prior written consent of the other party or an order of the court.
This bill would, additionally, provide that the temporary
restraining order restrain the parties from applying for a new or
replacement passport for the minor child or children of the parties
without the prior written consent of the other party or an order of
the court.
(2) Existing law authorizes the court, upon request of the
district attorney, to issue a protective custody warrant to secure
the recovery of an unlawfully detained or concealed child. The
protective custody warrant for the child is required to contain an
order that the arresting agency shall place the child in protective
custody, or return the child as directed by the court.
This bill would authorize the court to also include within the
protective custody warrant for the child an order to freeze the
California assets, as defined, of the party alleged to be in
possession of the child. The bill would provide that, upon noticed
motion, any order to freeze assets pursuant to these provisions may
be terminated, modified, or vacated by the court upon a finding that
the release of the assets will not jeopardize the safety or best
interest of the child. The bill would also require that if an asset
freeze order is entered pursuant to these provisions, and the court
subsequently dismisses the protective custody warrant for the child,
notice of the dismissal be immediately served on specified entities.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as Keisuke's
Law.
SEC. 2. Section 2040 of the Family Code is amended to read:
2040. (a) In addition to the contents required by Section 412.20
of the Code of Civil Procedure, the summons shall contain a temporary
restraining order:
(1) Restraining both parties from removing the minor child or
children of the parties, if any, from the state, or from applying for
a new or replacement passport for the minor child or children,
without the prior written consent of the other party or an order of
the court.
(2) Restraining both parties from transferring, encumbering,
hypothecating, concealing, or in any way disposing of any property,
real or personal, whether community, quasi-community, or separate,
without the written consent of the other party or an order of the
court, except in the usual course of business or for the necessities
of life, and requiring each party to notify the other party of any
proposed extraordinary expenditures at least five business days
before incurring those expenditures and to account to the court for
all extraordinary expenditures made after service of the summons on
that party.
Notwithstanding the foregoing, nothing in the restraining order
shall preclude a party from using community property, quasi-community
property, or the party's own separate property to pay reasonable
attorney's fees and costs in order to retain legal counsel in the
proceeding. A party who uses community property or quasi-community
property to pay his or her attorney's retainer for fees and costs
under this provision shall account to the community for the use of
the property. A party who uses other property that is subsequently
determined to be the separate property of the other party to pay his
or her attorney's retainer for fees and costs under this provision
shall account to the other party for the use of the property.
(3) Restraining both parties from cashing, borrowing against,
canceling, transferring, disposing of, or changing the beneficiaries
of any insurance or other coverage, including life, health,
automobile, and disability, held for the benefit of the parties and
their child or children for whom support may be ordered.
(4) Restraining both parties from creating a nonprobate transfer
or modifying a nonprobate transfer in a manner that affects the
disposition of property subject to the transfer, without the written
consent of the other party or an order of the court.
(b) Nothing in this section restrains any of the following:
(1) Creation, modification, or revocation of a will.
(2) Revocation of a nonprobate transfer, including a revocable
trust, pursuant to the instrument, provided that notice of the change
is filed and served on the other party before the change takes
effect.
(3) Elimination of a right of survivorship to property, provided
that notice of the change is filed and served on the other party
before the change takes effect.
(4) Creation of an unfunded revocable or irrevocable trust.
(5) Execution and filing of a disclaimer pursuant to Part 8
(commencing with Section 260) of Division 2 of the Probate Code.
(c) In all actions filed on and after January 1, 1995, the summons
shall contain the following notice:
"WARNING: California law provides that, for purposes of division
of property upon dissolution of marriage or legal separation,
property acquired by the parties during marriage in joint form is
presumed to be community property. If either party to this action
should die before the jointly held community property is divided, the
language of how title is held in the deed (i.e., joint tenancy,
tenants in common, or community property) will be controlling and not
the community property presumption. You should consult your attorney
if you want the community property presumption to be written into
the recorded title to the property."
(d) For the purposes of this section:
(1) "Nonprobate transfer" means an instrument, other than a will,
that makes a transfer of property on death, including a revocable
trust, pay on death account in a financial institution, Totten trust,
transfer on death registration of personal property, or other
instrument of a type described in Section 5000 of the Probate Code.
(2) "Nonprobate transfer" does not include a provision for the
transfer of property on death in an insurance policy or other
coverage held for the benefit of the parties and their child or
children for whom support may be ordered, to the extent that the
provision is subject to paragraph (3) of subdivision (a).
(e) The restraining order included in the summons shall include
descriptions of the notices required by paragraphs (2) and (3) of
subdivision (b).
SEC. 3. Section 3134.5 of the Family Code is amended to read:
3134.5. (a) Upon request of the district attorney, the court may
issue a protective custody warrant to secure the recovery of an
unlawfully detained or concealed child. The request by the district
attorney shall include a written declaration under penalty of perjury
that a warrant for the child is necessary in order for the district
attorney to perform the duties described in Sections 3130 and 3131.
The protective custody warrant for the child shall contain an order
that the arresting agency shall place the child in protective
custody, or return the child as directed by the court. The protective
custody warrant for the child may also contain an order to freeze
the California assets of the party alleged to be in possession of the
child. The protective custody warrant may be served in any county in
the same manner as a warrant of arrest and may be served at any time
of the day or night. For purposes of this subdivision, "assets"
means funds held in a depository institution, as defined in
subdivision (a) of Section 1420 of the Financial Code, in California.
(b) Upon a declaration of the district attorney that the child has
been recovered or that the warrant is otherwise no longer required,
the court may dismiss the warrant without further court proceedings.
(c) Upon noticed motion, any order to freeze assets pursuant to
subdivision (a) may be terminated, modified, or vacated by the court
upon a finding that the release of the assets will not jeopardize the
safety or best interest of the child.
(d) If an asset freeze order is entered pursuant to subdivision
(a), and the court subsequently dismisses the warrant pursuant to
subdivision (b), notice of the dismissal shall be immediately served
on the depository institutions holding any assets pursuant to the
freeze order.
