BILL NUMBER: AB 612 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 22, 2009
INTRODUCED BY Assembly Member Beall
FEBRUARY 25, 2009
An act to amend Section 3111 of, and to add Sections
3005, 3045, 3100.5, and 3110.6 to, An act to add
Section 3005 to the Family Code, relating to custody and
visitation.
LEGISLATIVE COUNSEL'S DIGEST
AB 612, as amended, Beall. Custody and visitation: nonscientific
theories.
Existing law governs the determination of child custody and
visitation with a child in contested proceedings. Existing law
provides for the use of court-appointed investigators, as defined,
including court-appointed evaluators directed by the court to conduct
a child custody investigation in those proceedings. Existing law
authorizes the court to appoint a child custody evaluator if the
court determines it is in the best interest of the child. If directed
by the court, the evaluator is required to file a written
confidential report on his or her evaluation. The report may be
received in evidence on stipulation of all interested parties and is
competent evidence as to all matters contained in the report.
Existing law requires the Judicial Council to adopt standards for
court-connected evaluations, investigations, and assessments related
to child custody.
This bill would prohibit a court from considering
relying upon a nonscientific theory, as defined,
submitted to the court by a court-appointed or court-connected
professional mediator, evaluator, or other person in making a
determination regarding the best interest of, child
custody of or visitation with a child. The bill would
provide that a report that relies on a nonscientific theory would
not be admissible into evidence in any proceeding to determine
custody or visitation and would make a related change. The bill
would also prohibit a court from considering or receiving
into evidence a report, assessment, evaluation, or investigation
prepared pursuant to the provisions described above if it includes a
nonscientific theory. By revising the standards for court-connected
evaluations, investigations, and assessments related to child
custody, the bill would require the Judicial Council to adopt rules
and forms implementing those revised standards relying
upon any conclusion by an investigator or evaluator that is not
supported by observed actions, behaviors, or conduct of a parent that
may affect or may impact the child's best interest. The bill would
prohibit those providing training approved by the Judicial Council,
including the Judicial Council, from training professionals to rely
on unscientific theories .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares
that it is the policy of the State of California to ensure that all
children are safe from physical and sexual harm.
(b) It is also the intent of the Legislature to ease the burden on
family court resources caused by reliance on nonscientific theories
in family court proceedings, resulting in unnecessary prolongation of
cases by discouraging proper investigation of crimes and shifting
the fact finding process away from determining whether children are
safe from physical and sexual abuse.
SEC. 2. Section 3005 is added to the
Family Code , to read:
3005. (a) As used in this chapter.
(1) A "nonscientific theory" is one that is not consistent with
generally accepted clinical, forensic, scientific, diagnostic, or
medical standards, and does not meet the Kelly-Frye standards of
evidence.
(2) An "alienation theory" is a nonscientific theory which is
based on the assumption that a child's refusal to visit with,
expression of hostility toward, or report of physical or sexual abuse
by a parent is caused or maliciously fabricated by the other parent.
(b) A court may not rely upon a nonscientific theory, including,
but not limited to, an alienation theory, submitted to the court by a
court-appointed or court-connected professional mediator, evaluator,
or other person in determining the best interest of, or custody or
visitation arrangements for, children.
(c) (1) A report that relies upon a nonscientific theory,
including an alienation theory, shall not be admissible into evidence
in any proceeding to determine custody or visitation.
(2) Any report by an evaluator, investigator, or recommending
mediator to the court regarding the best interests of a child for
purposes of determining child custody or visitation shall not be read
or considered by the court until the parties stipulate to its
admissibility into evidence, or until a properly noticed evidentiary
hearing is held at which the admissibility of the report is
established.
(d) (1) A court may not rely upon any conclusion by an
investigator or evaluator that is not supported by observed actions,
behaviors, or conduct of a parent that may affect or may impact the
child's best interest.
(2) Nothing in this section precludes a child custody investigator
or evaluator from interviewing parents and children, observing
parent-child interaction, speaking to collateral sources, consulting
with other professionals regarding psychological data, or using his
or her professional expertise to integrate data, assess and evaluate
psychological issues, or communicate the results of those analyses to
the court consistent with ethical and professional standards.
(e) Those providing Judicial Council-approved training to
mediators, evaluators, investigators, judges, and other court-related
or court-connected professionals, including the Judicial Council,
may not train professionals to rely upon unscientific theories,
including, but not limited to, alienation theories.
SECTION 1. Section 3005 is added to the Family
Code, to read:
3005. "Nonscientific theory" means a theory regarding human
behavior and interactions that is not consistent with generally
accepted clinical, forensic, scientific, diagnostic, or medical
standards as promulgated by a majority of licensed professionals in
the medical, psychiatric, and psychological communities, including,
but not limited to, an alienation theory.
SEC. 2. Section 3045 is added to the Family
Code, to read:
3045. In a proceeding to determine child custody, a court shall
not consider a nonscientific theory in making that determination.
SEC. 3. Section 3100.5 is added to the Family
Code, to read:
3100.5. In a proceeding to determine visitation with a child, a
court shall not consider a nonscientific theory in making that
determination.
SEC. 4. Section 3110.6 is added to the Family
Code, to read:
3110.6. Notwithstanding any other provision of law, in any
contested proceeding involving child custody or visitation rights, a
court may not consider and may not receive into evidence a report,
assessment, evaluation, or investigation prepared pursuant to this
chapter if that report, assessment, evaluation, or investigation
includes a nonscientific theory.
SEC. 5. Section 3111 of the Family Code is
amended to read:
3111. (a) In any contested proceeding involving child custody or
visitation rights, the court may appoint a child custody evaluator to
conduct a child custody evaluation in cases in which the court
determines it is in the best interest of the child. The child custody
evaluation shall be conducted in accordance with the standards
adopted by the Judicial Council pursuant to Section 3117, and all
other standards adopted by the Judicial Council regarding child
custody evaluations. If directed by the court, the court-appointed
child custody evaluator shall file a written confidential report on
his or her evaluation. At least 10 days before any hearing regarding
custody of the child, the report shall be filed with the clerk of the
court in which the custody hearing will be conducted and served on
the parties or their attorneys, and any other counsel appointed for
the child pursuant to Section 3150. Except as otherwise provided in
Section 3110.6, the report may be considered by the court.
(b) The report shall not be made available other than as provided
in subdivision (a), or as described in Section 204 of the Welfare and
Institutions Code or Section 1514.5 of the Probate Code. Any
information obtained from access to a juvenile court case file, as
defined in subdivision (e) of Section 827 of the Welfare and
Institutions Code, is confidential and shall only be disseminated as
provided by paragraph (4) of subdivision (a) of Section 827 of the
Welfare and Institutions Code.
(c) Except as otherwise provided in Section 3110.6, the report
may be received in evidence on stipulation of all interested parties
and is competent evidence as to all matters contained in the report.
(d) If the court determines that an unwarranted disclosure of a
written confidential report has been made, the court may impose a
monetary sanction against the disclosing party. The sanction shall be
in an amount sufficient to deter repetition of the conduct, and may
include reasonable attorney's fees, costs incurred, or both, unless
the court finds that the disclosing party acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust. The court shall not impose a sanction pursuant to
this subdivision that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. This subdivision shall
become operative on January 1, 2010.
(e) The Judicial Council shall, by January 1, 2010, do the
following:
(1) Adopt a form to be served with every child custody evaluation
report that informs the report recipient of the confidentiality of
the report and the potential consequences for the unwarranted
disclosure of the report.
(2) Adopt a rule of court to require that, when a court-ordered
child custody evaluation report is served on the parties, the form
specified in paragraph (1) shall be included with the report.
(f) For purposes of this section, a disclosure is unwarranted if
it is done either recklessly or maliciously, and is not in the best
interests of the child.