BILL NUMBER: AB 1307 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 27, 2005
AMENDED IN ASSEMBLY APRIL 11, 2005
INTRODUCED BY Assembly Member Dymally
(Principal coauthor: Senator Ashburn)
FEBRUARY 22, 2005
An act to amend Sections 3011, 3020, 3027.1, 3040, and 3118 of,
and to repeal Sections 3080 and 3082 of, the Family Code, relating to
child custody.
LEGISLATIVE COUNSEL'S DIGEST
AB 1307, as amended, Dymally. Child custody.
(1) Existing law requires the court to consider specified factors,
including, but not limited to, any history of abuse, in making a
determination of the best interest of a child for purposes of
determining child custody.
This bill would additionally require the court to order
that parental responsibility for a minor child be shared equally by
both parents provide both parents equal access to
minor children , and to award equal joint custody to both
parents, except under specified conditions.
(2) Existing law finds and declares that it is the policy of this
state to assure that the health, safety, and welfare of children are
the court's primary concern in determining the best interest of
children when making any orders regarding the physical or legal
custody or visitation of children.
This bill would state the further findings of the Legislature that
in the absence of evidence to the contrary, the best interest of the
child means substantially equal contact with both parents
as provided in an order for joint custody, unless a party or both
parties request otherwise.
(3) Existing law authorizes the court to impose reasonable money
sanctions, including reasonable attorney's fees incurred in
recovering the sanctions, against a person who knowingly makes a
false accusation of child abuse or neglect during a child custody
proceeding, under certain conditions.
This bill would require the court to impose these money sanctions,
and to consider a finding of an intentional false accusation made by
a party to be a change of circumstances of an existing custody
order.
(4) Existing law requires the court to consider specified custody
arrangements, in order of preference, according to the best interest
of the child.
This bill would revise and recast this provision to specify that
custody should be granted first to both parents jointly and equally
and, second, to either parent.
(5) Existing law establishes a presumption that joint custody is
in the best interest of a minor child where the parents have agreed
to joint custody or so agree in open court at a custody hearing, as
specified. The court is required, when a request for joint custody is
granted or denied, upon the request of any party, to state in its
decision the reasons for granting or denying the request.
This bill would delete these provisions.
(6) This bill would make related, other conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
The Legislature finds and declares all of the following:
(a) The United States Supreme Court has continually recognized
that natural parents have a fundamental liberty interest in the care,
custody, and management of their children.
(b) Numerous public and private studies show that children
experience less social, educational, psychological, and legal
problems when they are raised with the equal involvement of both
parents despite separation or divorce.
(c) The current law causes unnecessary litigation, conflict among
parents, and the excessive use of limited court resources by
requiring courts to make a finding of the best interest of the child
in every case where there are two loving, concerned parents
interested in having an equal say in the raising of their child.
(d) Trial courts can best protect the fundamental liberty interest
of parents in raising their children by awarding joint custody to
both interested parents in the absence of clear and convincing
evidence that such an award would not be in the best interest of the
child.
SEC. 2. Section 3011 of the Family Code is amended to read:
3011.
(a) In any proceeding described in Section 3021, the court shall
do both of the following:
(1) Order that parental responsibility for a minor child be shared
equally by both parents.
(2) Award equal joint custody to both parents unless both parties
jointly request otherwise or a party alleges and proves by clear and
convincing evidence that joint custody would not be in the best
interest of the child. A statement that joint physical custody is not
in the best interest of the child is not sufficient to satisfy the
requirements of this section. If the court does not order an equal
joint custody award consistent with both parties' fundamental liberty
interest in raising their children, it shall make a finding that
specifically identifies those facts it relied upon to determine that
an equal joint custody award would not be in the best interest of the
child.
(1) To effectuate the state's policy of assuring that children
have frequent and continuing contact with both parents as set forth
in Section 3020, the court shall provide, to the greatest degree
practical, both parents with substantially equal access to the minor
children unless the court finds clear and convincing evidence that
shared parenting would not be in the best interest of the child. The
burden of proof that shared parenting would be detrimental to the
child shall be upon the objecting parent.
(2) If the court does not order a joint custody award providing
both parents with substantially equal access to the minor children,
it shall include in the record the specific findings of the facts it
relied upon in making its custody award.
(b) In making a determination of the best interest of the child,
the court shall, among any other factors it finds relevant, consider
all of the following:
(1) The health, safety, and welfare of the child.
(2) (A) Any history of abuse by one parent or any other person
seeking custody against any of the following:
(i) Any child to whom he or she is related by blood or affinity or
with whom he or she has had a caretaking relationship, no matter how
temporary.
(ii) The other parent.
(iii) A parent, current spouse, or cohabitant, of the parent or
person seeking custody, or a person with whom the parent or person
seeking custody has a dating or engagement relationship.
(B) As a prerequisite to the consideration of allegations of
abuse, the court may require substantial independent corroboration,
including, but not limited to, written reports by law enforcement
agencies, child protective services or other social welfare agencies,
courts, medical facilities, or other public agencies or private
nonprofit organizations providing services to victims of sexual
assault or domestic violence. As used in this subdivision, "abuse
against a child" means "child abuse" as defined in Section 11165.6 of
the Penal Code, and abuse against any of the other persons described
in clause (ii) or (iii) of subparagraph (A) means "abuse" as defined
in Section 6203.
(3) The nature and amount of contact with both parents, except as
provided in Section 3046.
(4) The habitual or continual illegal use of controlled substances
or habitual or continual abuse of alcohol by either parent. Before
considering these allegations, the court may first require
independent corroboration, including, but not limited to, written
reports from law enforcement agencies, courts, probation departments,
social welfare agencies, medical facilities, rehabilitation
facilities, or other public agencies or nonprofit organizations
providing drug and alcohol abuse services. As used in this paragraph,
"controlled substances" has the same meaning as defined in the
California Uniform Controlled Substances Act, Division 10 (commencing
with Section 11000) of the Health and Safety Code.
(5) Any additional information or evidence the court finds
relevant.
(c) (1) Where allegations about a parent pursuant to paragraph (2)
or (4) of subdivision (b) have been brought to the attention of the
court in the current proceeding, and the court makes an order for
sole or joint custody to that parent, the court shall state its
reasons in writing or on the record. In these circumstances, the
court shall ensure that any order regarding custody or visitation is
specific as to time, day, place, and manner of transfer of the child
as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the
parties stipulate in writing or on the record regarding custody or
visitation.
SEC. 3. Section 3020 of the Family Code is amended to read:
3020.
(a) The Legislature finds and declares that it is the public
policy of this state to assure that the health, safety, and welfare
of children shall be the court's primary concern in determining the
best interest of children when making any orders regarding the
physical or legal custody or visitation of children. The Legislature
further finds that in the absence of evidence to the contrary, the
best interest of the child means substantially equal
contact with both parents as provided in an order for joint custody
unless a party or both parties request otherwise. The Legislature
further finds and declares that the perpetration of child abuse or
domestic violence in a household where a child resides is detrimental
to the child.
(b) The Legislature finds and declares that it is the public
policy of this state to assure that children have frequent and
continuing contact with both parents after the parents have separated
or dissolved their marriage, or ended their relationship, and to
encourage parents to share equally the rights and responsibilities of
child rearing, except where the contact would not be in the best
interest of the child, as provided in Section 3011.
(c) The Legislature finds and declares that in order to effect the
policies set forth in subdivisions (a) and (b) efficiently, minimize
unnecessary conflict between the parties, and reduce any undue
interference by government in the fundamental right of parents to
raise their children, courts shall order joint custody equally to
both parents as provided in Section 3011, unless the court finds it
would not be in the best interest of the child. Consistent with this
policy, any court order regarding visitation shall be made in a
manner that ensures the health, safety, and welfare of all family
members.
(c) Where the policies set forth in subdivisions (a) and (b) of
this section are in conflict, any court's order regarding physical or
legal custody or visitation shall be made in a manner that ensures
the health, safety, and welfare of the child and the safety of all
family members.
SEC. 4. Section 3027.1 of the Family Code is amended to read:
3027.1.
(a) If a court determines, based on the investigation described in
Section 3027 or other evidence presented to it, that an accusation
of child abuse or neglect made during a child custody proceeding is
false and the person making the accusation knew it to be false at the
time the accusation was made, the court shall impose reasonable
money sanctions, not to exceed all costs incurred by the party
accused as a direct result of defending the accusation, and
reasonable attorney's fees incurred in recovering the sanctions,
against the person making the accusation. The court also shall
consider a finding of an intentional false accusation made by a party
to be a change of circumstances of an existing custody order. For
the purposes of this section, "person" includes a witness, a party,
or a party's attorney.
(b) On motion by any person requesting sanctions under this
section, the court shall issue its order to show cause why the
requested sanctions should not be imposed. The order to show cause
shall be served on the person against whom the sanctions are sought
and a hearing thereon shall be scheduled by the court to be conducted
at least 15 days after the order is served.
(c) The remedy provided by this section is in addition to any
other remedy provided by law.
SEC. 5. Section 3040 of the Family Code is amended to read:
3040.
(a) Custody should be granted in the following order of preference
as provided in Sections 3011 and 3020:
(1) To both parents jointly and equally.
(2) To either parent. In making an order granting custody to
either parent, the court shall consider, among other factors, which
parent is more likely to allow the child frequent and continuing
contact with the noncustodial parent, consistent with Section 3011
and 3020, and shall not prefer a parent as custodian because of that
parent's sex. The court, in its discretion, may require the parents
to submit to the court a plan for the implementation of the custody
order.
(3) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
(4) To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance
for the child.
(b) Subject to the provisions for equal joint
custody provided in Section 3011, this section allows the court and
the family the widest discretion to choose a parenting plan that is
in the best interest of the child.
SEC. 6. Section 3080 of the Family Code is repealed.
SEC. 7. Section 3082 of the Family Code is repealed.
SEC. 8. Section 3118 of the Family Code is amended to read:
3118.
(a) In any contested proceeding involving child custody or
visitation rights, where the court has appointed a child custody
evaluator or has referred a case for a full or partial
court-connected evaluation, investigation, or assessment, and the
court determines that there is a serious allegation of child sexual
abuse, the court shall require an evaluation, investigation, or
assessment pursuant to this section. When the court has determined
that there is a serious allegation of child sexual abuse, any child
custody evaluation, investigation, or assessment conducted subsequent
to that determination shall be considered by the court only if the
evaluation, investigation, or assessment is conducted in accordance
with the minimum requirements set forth in this section in
determining custody or visitation rights, except as specified in
paragraph (1). For purposes of this section, a serious allegation of
child sexual abuse means an allegation of child sexual abuse, as
defined in Section 11165.1 of the Penal Code, that is based in whole
or in part on statements made by the child to law enforcement, a
child welfare services agency investigator, any person required by
statute to report suspected child abuse, or any other court-appointed
personnel, or that is supported by substantial independent
corroboration as provided for in subparagraph (B) of paragraph (2) of
subdivision (b) of Section 3011. When an allegation of child abuse
arises in any other circumstances in any proceeding involving child
custody or visitation rights, the court may require an evaluator or
investigator to conduct an evaluation, investigation, or assessment
pursuant to this section. The order appointing a child custody
evaluator or investigator pursuant to this section shall provide that
the evaluator or investigator have access to all juvenile court
records pertaining to the child who is the subject of the evaluation,
investigation, or assessment. The order shall also provide that any
juvenile court records or information gained from those records
remain confidential and shall only be released as specified in
Section 3111.
(1) This section does not apply to any emergency court-ordered
partial investigation that is conducted for the purpose of assisting
the court in determining what immediate temporary orders may be
necessary to protect and meet the immediate needs of a child. This
section does apply when the emergency is resolved and the court is
considering permanent child custody or visitation orders.
(2) This section does not prohibit a court from considering
evidence relevant to determining the safety and protection needs of
the child.
(3) Any evaluation, investigation, or assessment conducted
pursuant to this section shall be conducted by an evaluator or
investigator who meets the qualifications set forth in Section
3110.5.
(b) The evaluator or investigator shall, at a minimum, do all of
the following:
(1) Consult with the agency providing child welfare services and
law enforcement regarding the allegations of child sexual abuse, and
obtain recommendations from these professionals regarding the child's
safety and the child's need for protection.
(2) Review and summarize the child welfare services agency file.
No document contained in the child welfare services agency file may
be photocopied, but a summary of the information in the file,
including statements made by the children and the parents, and the
recommendations made or anticipated to be made by the child welfare
services agency to the juvenile court, may be recorded by the
evaluator or investigator, except for the identity of the reporting
party. The evaluator's or investigator's notes summarizing the child
welfare services agency information shall be stored in a file
separate from the evaluator's or investigator's file and may only be
released to either party under order of the court.
(3) Obtain from a law enforcement investigator all available
information obtained from criminal background checks of the parents
and any suspected perpetrator that is not a parent, including
information regarding child abuse, domestic violence, or substance
abuse.
(4) Review the results of a multidisciplinary child interview team
(hereafter MDIT) interview if available, or if not, or if the
evaluator or investigator believes the MDIT interview is inadequate
for purposes of the evaluation, investigation, or assessment,
interview the child or request an MDIT interview, and shall wherever
possible avoid repeated interviews of the child.
(5) Request a forensic medical examination of the child from the
appropriate agency, or include in the report required by paragraph
(6) a written statement explaining why the examination is not needed.
(6) File a confidential written report with the clerk of the court
in which the custody hearing will be conducted and which shall be
served on the parties or their attorneys at least 10 days prior to
the hearing. This report may not be made available other than as
provided in this subdivision. This report shall include, but is not
limited to, the following:
(A) Documentation of material interviews, including any MDIT
interview of the child or the evaluator or investigator, written
documentation of interviews with both parents by the evaluator or
investigator, and interviews with other witnesses who provided
relevant information.
(B) A summary of any law enforcement investigator's investigation,
including information obtained from the criminal background check of
the parents and any suspected perpetrator that is not a parent,
including information regarding child abuse, domestic violence, or
substance abuse.
(C) Relevant background material, including, but not limited to, a
summary of a written report from any therapist treating the child
for suspected child sexual abuse, excluding any communication subject
to Section 1014 of the Evidence Code, reports from other
professionals, and the results of any forensic medical examination
and any other medical examination or treatment that could help
establish or disprove whether the child has been the victim of sexual
abuse.
(D) The written recommendations of the evaluator or investigator
regarding the therapeutic needs of the child and how to ensure the
safety of the child.
(E) A summary of the following information: whether the child and
his or her parents are or have been the subject of a child abuse
investigation and the disposition of that investigation; the name,
location, and telephone number of the children's services worker; the
status of the investigation and the recommendations made or
anticipated to be made regarding the child's safety; and any
dependency court orders or findings that might have a bearing on the
custody dispute.
(F) Any information regarding the presence of domestic violence or
substance abuse in the family that has been obtained from a child
protective agency in accordance with paragraphs (1) and (2), a law
enforcement agency, medical personnel or records, prior or currently
treating therapists, excluding any communication subject to Section
1014 of the Evidence Code, or from interviews conducted or reviewed
for this evaluation, investigation, or assessment.
(G) Which, if any, family members are known to have been deemed
eligible for assistance from the Victims of Crime Program due to
child abuse or domestic violence.
(H) Any other information the evaluator or investigator believes
would be helpful to the court in determining what is in the best
interests of the child.
(c) If the evaluator or investigator obtains information as part
of a family court mediation, that information shall be maintained in
the family court file, which is not subject to subpoena by either
party. If, however, the members of the family are the subject of an
ongoing child welfare services investigation, or the evaluator or
investigator has made a child welfare services referral, the
evaluator or investigator shall so inform the family law judicial
officer in writing and this information shall become part of the
family law file. This subdivision may not be construed to authorize
or require a mediator to disclose any information not otherwise
authorized or required by law to be disclosed.
(d) In accordance with subdivision (d) of Section 11167 of the
Penal Code, the evaluator or investigator may not disclose any
information regarding the identity of any person making a report of
suspected child abuse. Nothing in this section is intended to limit
any disclosure of information by any agency that is otherwise
required by law or court order.
(e) The evaluation, investigation, or assessment standards set
forth in this section represent minimum requirements of evaluation
and the court shall order further evaluation beyond these minimum
requirements when necessary to determine the safety needs of the
child.
(f) If the court orders an evaluation, investigation, or
assessment pursuant to this section, the court shall consider whether
the best interests of the child require that a temporary order be
issued that limits visitation with the parent against whom the
allegations have been made to situations in which a third person
specified by the court is present or whether visitation will be
suspended or denied in accordance with Section 3011.
(g) An evaluation, investigation, or assessment pursuant to this
section shall be suspended if a petition is filed to declare the
child a dependent child of the juvenile court pursuant to Section 300
of the Welfare and Institutions Code, and all information gathered
by the evaluator or investigator shall be made available to the
juvenile court.
(h) This section may not be construed to authorize a court to
issue any orders in a proceeding pursuant to this division regarding
custody or visitation with respect to a minor child who is the
subject of a dependency hearing in juvenile court or to otherwise
supersede Section 302 of the Welfare and Institutions Code.