ASSEMBLY BILL NO. 939 AND ITS EFFECT ON FAMILY LAW

Many family law litigants should be aware of the new legislation which is going to have a profound impact on family law cases involving custody , visitation , and support issues .

According to Legislative Counsel's Digest, "AB 939, Committee on Judiciary. Family Law Proceedings..."Existing law provides that all relevant evidence is admissable in an action before the court, including evidence relevant to the credibility of a witness or hearsay declarant, subject to specified exceptions. This bill would require the court in family law actions to receive all live competent, and relevant testimony at a hearing of an order to show cause or notice of motion , unless the parties stipulate otherwise or the court makes a finding of good cause to refuse to hear the testimony."

Prior to AB 939 parties could rely upon evidence presented through written declarations submitted by both parties. Many cases were then decided based solely upon the contents of the parties' written declarations with little or no testimony from the parties or witnesses. Many felt that the absence of live testimony deprived family law litigants of their "day in court". The California Supreme Court found in Elkins v. Superior Court (2007) 41 Cal.4th 1337, that family law litigants are deprived due process protections when live testimony is reduced and that access to justice requires that parties be able to appropriately address the court and present their cases.

It is extremely important that family law litigants who so desire are given the opportunity to present evidence through live testimony and cross examination. When someone is faced with the prospect of losing custody of their minor children, the prospect of receiving or paying support ( child support or spousal support ), or seeking other temporary orders on an order to show cause or notice of motion that individual should be afforded the right to a full evidentiary hearing.
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