BILL NUMBER: SB 265 CHAPTERED 08/29/03 CHAPTER 243 FILED WITH SECRETARY OF STATE AUGUST 29, 2003 APPROVED BY GOVERNOR AUGUST 28, 2003 PASSED THE SENATE AUGUST 19, 2003 PASSED THE ASSEMBLY JULY 7, 2003 AMENDED IN ASSEMBLY JUNE 12, 2003 AMENDED IN SENATE MAY 13, 2003 AMENDED IN SENATE MAY 5, 2003 AMENDED IN SENATE APRIL 21, 2003 INTRODUCED BY Senator Kuehl (Principal coauthor: Senator Chesbro) (Coauthors: Senators McClintock and Romero) (Coauthors: Assembly Members Cohn, Jackson, Lieber, Longville, and Pavley) FEBRUARY 18, 2003 An act to amend Section 3044 of the Family Code, relating to child custody. LEGISLATIVE COUNSEL'S DIGEST SB 265, Kuehl. Child custody: domestic violence. Existing law provides that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or divorced, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing, except where the contact would not be in the best interest of the child. Existing law requires the court to consider specified factors in making a determination of the best interest of the child. However, existing law provides that, upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence, there is a rebuttable presumption that an award of sole or joint custody of a child to that person is detrimental to the best interest of the child. The presumption may only be rebutted by a preponderance of the evidence. However, the presumption is not applicable in cases in which both parents are perpetrators of domestic violence. Existing law sets forth specified factors that the court is required to consider in determining whether the presumption has been overcome. The court must consider, among other factors, whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of the child to the perpetrator is in the best interest of the child. In addition, if the perpetrator is on probation or parole, the court is required to consider whether the perpetrator is restrained by a protective order and whether he or she has complied with its terms or conditions. This bill would revise those provisions to provide that, for purposes of determining the best interest of the child, the preference for frequent and continuing contact with both parents may not be used to rebut the presumption against the award of custody to a perpetrator of domestic violence. The bill would additionally require the court to consider, in determining whether the presumption has been overcome, whether the perpetrator is on probation or parole and whether he or she has complied with the terms and conditions of probation or parole. The bill would also require the court to consider whether the perpetrator is restrained by a protective order or restraining order, without regard to whether the perpetrator is on probation or parole, and whether the perpetrator has complied with the terms and conditions of the protective order or restraining order. The bill would explicitly expand the scope of these provisions to apply when there is evidence that a party has been convicted of any crime against the other party that comes within the definition of domestic violence, as specified. The bill would require the court to provide each of the parties with a written copy of these provisions and to inform them of these provisions in any custody or restraining order proceeding in which a party alleges that the other party has perpetrated domestic violence. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 3044 of the Family Code is amended to read: 3044. (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator has successfully completed a batterer' s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions. (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence. (c) For purposes of this section, a person has "perpetrated domestic violence" when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings. (d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years. (e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties. (f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.