BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 612 Assemblymember Beall As Amended June 28, 2009 Hearing Date: July 14, 2009 Family Code KB:jd SUBJECT Custody and Visitation: Nonscientific Theories DESCRIPTION This bill seeks to prohibit family court judges from relying on or considering certain evidence that is based on "unproven, nonscientific theories" including alienation theories, when trying to determine what custody arrangement appears to be in the best interest of the children. BACKGROUND This bill is sponsored by the Center for Judicial Excellence and the California Protective Parents Association. CHANGES TO EXISTING LAW Existing law states that the health, safety, and welfare of children is the court's primary concern when determining the best interests of children for child custody and visitation orders. (Fam. Code Sec. 3020.) Existing law provides that, in determining the best interests of a child in child custody and visitation proceedings, the court shall consider, among any other relevant factors, the health, safety, and welfare of the child, and any history of domestic abuse or substance abuse by either parent. (Fam. Code Sec. 3011.) Existing law permits the court, in a contested child custody or visitation proceeding where the court determines it is in the (more) AB 612 (Beall) Page 2 of ? best interests of the child, to appoint a child custody evaluator to conduct a child custody evaluation. Existing law provides that the evaluation may be considered by the court. Existing law provides that the report may be received in evidence on stipulation of all interested parties and is competent evidence on all matters contained in the report. (Fam. Code Sec. 3111.) Existing law provides that no court may deny or limit custody or visitation to a parent solely because that parent: (a) lawfully reported sexual abuse of the child; (b) otherwise acted lawfully, based on a reasonable belief, to determine if the child was a victim of sexual abuse; or (c) sought mental health treatment for the child based on suspected sexual abuse. (Fam. Code Sec. 3027.5(a).) Existing law allows a court to order supervised visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's contact with the child, makes a report of child abuse which the parent knew was false at the time it was made. Before imposing any such limitation on visitation, the court must have determined that the limitation is necessary to protect the health, safety, and welfare of the child and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents. (Fam. Code Sec. 3027.5(b).) Existing law establishes qualifications required of child custody evaluators. Existing law sets forth initial and continuing domestic violence training for child custody mediators, investigators, and evaluators. Existing rules of court specify qualifications for evaluators and specify the scope of the evaluation. (Fam. Code Secs. 1816, 3110.5, 3117; Cal. Rules of Court 5.220, 5.225.) Existing law , where the court determines there is a serious allegation of child sexual abuse, as defined, requires the child custody evaluation to be conducted under specified rules. (Fam. Code Sec. 3118.) Existing law provides that expert testimony is admissible if it is personally known or made known to the expert and is of a type that reasonably may be relied upon by an expert in forming an opinion. (Evid. Code Sec. 801.) This bill would provide that the rules of evidence applicable in criminal proceedings shall apply whenever the court considers an AB 612 (Beall) Page 3 of ? allegation of physical or sexual abuse against a child in a custody proceeding. This bill would also provide that unproven, nonscientific theories, including, but not limited to, alienation theories, as specified, are not consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. This bill would prohibit a court from relying upon an unproven, unscientific theory and from accepting into evidence any finding provided by an expert witness or court appointed professional who has relied on an unproven, nonscientific theory that is a basis for that finding. This bill would require the Judicial Council to provide training consistent with these provisions. This bill would include a statement of legislative intent that protecting children from physical or sexual abuse is the highest priority in custody and visitation decisions. COMMENT 1.Stated need for the bill The author states the bill is necessary because today court appointed child evaluators are free to use any theory in making their report regardless of acceptance or reliability. Reports are then used to aid the court in making determinations of custody and visitation. The author asserts that, as a result, some custody determinations or visitation rights are ordered based upon fringe theories that are not recognized by the relevant psychological, medical, and psychiatric communities. According to the author, the use of theories that are not generally accepted by the relevant scientific community is contrary to California evidence law. 2.Prohibition on the use of nonscientific theories a) "Parental Alienation Syndrome," and allegations of alienation generally Termination of a spousal relationship without attendant damage to the parental relationship is a difficult task. When one parent refuses to allow the other parent to be involved in the child's life, conflict ensues and a return AB 612 (Beall) Page 4 of ? to court becomes inevitable. Where one parent sabotages (intentionally or unintentionally) the other parent's role in the child's life or a child becomes estranged from a parent the term "parental alienation" is used. (Jerome Poliacoff, Cynthia Greene, and Laura Smith, Parental Alienation Syndrome: Frye v. Gardner in the Family Courts (1999).) Parental Alienation Syndrome, as the syndrome was apparently first coined by Richard Gardner in the 1980s, reportedly goes farther than simple alienation. At the extreme end, Gardner's theory - which it is critical to note here has not been an accepted theory as of yet in the scientific community - holds that a child's allegation of child sexual abuse by one parent is the product of the other parent's brainwashing of the child, as opposed to actual abuse. Under this one commentator's theory, a child's hatred or fear of his or her parent is not proof in and of itself of the veracity of the alleged abuse, but rather proof that the alleged abuse did not occur. b) Prohibition on the use of nonscientific theories This bill seeks to prohibit courts from relying on unproven, nonscientific theories, including alienation theories, or accepting into evidence any finding provided by an expert witness or court appointed professional who has relied on a nonscientific theory as a basis for the finding. This is seemingly intended to prohibit courts from relying on theories such as parental alienation syndrome, in making custody or visitation decisions. While arguing against reliance upon the "discredited" Parental Alienation Syndrome, a study by the National Council of Juvenile and Family Court Judges explains the importance of courts being permitted to use their discretion to distinguish when children are being manipulated and when they are victims of abuse: The discredited "diagnosis" of "[Parental Alienation Syndrome]" ? quite apart from the scientific invalidity, inappropriately asks the court to assume that children's behaviors and attitudes towards the parent who claims to be "alienated" have no grounding in reality. It also diverts attention from the behaviors of the abusive parent, who may have directly influenced the children's responses by acting AB 612 (Beall) Page 5 of ? in violent, disrespectful, intimidating, humiliating and/or discrediting ways toward the child themselves, or the children's other parent. The task for the court is to distinguish between situations in which children are critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications), and situations in which children have their own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. (National Council of Juvenile and Family Court Judges, Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judges Guide 24 (2004, Revised 2006) (emphasis added).) However, this bill goes beyond prohibiting a diagnosis of parental alienation syndrome, and generally prohibits reliance on any "unproven, nonscientific theory" without defining what that means. The bill would seemingly prevent a court from considering whether something as simple as a child not wanting to visit a parent was caused by the other parent. It may well be reasonable for an evaluator and a court to find, in a difficult custody case, depending on the facts of the case, that a child does not want to visit the other parent based, in part, on the high level of animosity between the parents. However, this bill appears to prevent a court, regardless of the facts of the individual case, from making such a determination and thereby acting in what the court believes to be the best interests of the child. Further, it is unclear as to how this prohibition would work in practice. Currently, expert witness testimony is governed by Evidence Code Section 801 which generally provides courts with discretion to determine the matter upon which experts may base their opinions and testimony. As stated in the Law Revision Commission comments to Section 801: It is not practical to formulate a detailed statutory rule that lists all of the matters upon which an expert may properly base his opinion, for it would be necessary to prescribe specific rules applicable to each field of expertise. This is clearly impossible; the subjects upon which expert opinion may be received are too numerous to make statutory prescription of applicable rules a feasible AB 612 (Beall) Page 6 of ? venture. It is possible, however, to formulate a general rule that specifies the minimum requisites that must be met in every case, leaving to the courts the task of determining particular detail within this general framework. This standard is expressed in subdivision (b) which states a general rule that is applicable whenever expert opinion is offered on a given subject. This bill attempts to craft a statutory rule for specific scenarios involving the use of alienation theories that would seemingly be difficult to implement due to its ambiguity and lack of procedural guidance. In opposition, the Judicial Council writes: As currently drafted, it is not clear whether the court would be allowed to consider the opinion of an evaluator that a parent was coaching the child to make false allegations of abuse, even if that opinion was based on an evaluator's interview with a child in which a child disclosed such influence explicitly. How is the court to determine whether the expert opinion is based solely on the child's statements or the parent's behavior, and not based in part upon the prohibited theory? Also in opposition, the Family Law Section of the State Bar (FLEXCOM) writes: There will be litigation over whether or not an expert or court appointed professional relied in any way on an "unproven, nonscientific theory," and if so the entire report and testimony would be deemed inadmissible, instead of merely striking the inadmissible portions. The court would have no evidence from the expert, and a new investigation/evaluation would have to be conducted to obtain an opinion of another expert. Not only would this system be extremely costly, but it would harm children due to the continued litigation of the case, and delays in child custody placement and visitation plans. This committee may accordingly wish to consider whether a general prohibition on undefined "unproven, nonscientific theories" would create confusion, unduly limit judicial discretion in child custody cases, and potentially delay court proceedings. AB 612 (Beall) Page 7 of ? WOULD A GENERAL PROHIBITION ON UNDEFINED NONSCIENTIFIC THEORIES CREATE CONFUSION, UNDULY LIMIT JUDICIAL DISCRETION, AND POTENTIALLY DELAY COURT PROCEEDINGS? 3.Required investigations of allegations of physical or sexual abuse Existing law establishes specific and extensive requirements for child custody evaluations in cases where the court has already appointed a child custody evaluator, and has made a determination that there is a serious allegation of child sexual abuse. (Fam. Code Sec. 3118.) This bill would provide that all allegations of physical or sexual abuse must be investigated using methods of data collection and analysis consistent with the requirements of Section 3118, even in cases where the court does not believe that an evaluation is warranted or necessary. In opposition to this provision, the Judicial Council states: A child custody evaluation is only one of the tools available to courts in child custody matters in which there are allegations of abuse. Another option is to refer the case to the local child welfare agency which is statutorily responsible for investigating claims of abuse of children and is required to take action to protect children subject to abuse. In other cases the court may be persuaded by the evidence presented in court prior to any evaluation that a parent who is alleged to have committed abuse is in fact a danger to the child and wish to award sole custody to the other parent in order to protect the child. The provisions of AB 612 could be used by the allegedly abusive parent to demand an evaluation consistent with section 3118 in such a case. This committee may wish to consider whether requiring a complete and extensive investigation into every single allegation of abuse may actually endanger children by preventing courts from awarding custody to a protective parent where there is already compelling evidence that one parent has abused the child. 4.Ambiguity as to which rules of evidence apply This bill would provide that the rules of evidence applicable in criminal proceedings shall apply whenever the court considers an allegation of physical or sexual abuse against a child in child custody matters. The California Evidence Code generally applies to both civil and criminal proceedings. However, there are AB 612 (Beall) Page 8 of ? specific evidence rules that apply specifically to criminal proceedings which are intended to protect the constitutional rights of criminal defendants and to ensure that juries are not unduly prejudiced. For example, a defendant in a criminal proceeding is innocent until proven guilty beyond a reasonable doubt. A defendant in a criminal case has a privilege not to be called as a witness and not to testify (Evid. Code Sec. 930.) Character evidence relating to the defendant and the victim may be admissible (Evid. Code Secs. 1102, 1103). Further, under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, the accused in criminal proceedings also has the right to confront witnesses. The author has offered no reason as to why rules of evidence applicable in criminal proceedings should be used in custody cases where there are allegations of child abuse. Because these rules were drafted and tailored to address specific rights and circumstances that arise in criminal proceedings, their application would arguably not be appropriate or sound public policy. In opposition, FLEXCOM writes: Many of these rules could be harmful to children and would mandate that the accuser could not only attack the character of the alleged victim, but could also cross examine the minor child that was accusing a parent of physical and/or sexual abuse. Further, such an evidentiary standard would harm children as it would place the burden of proof against the alleged perpetrator at "beyond a reasonable doubt" which is much harder to prove than merely a "preponderance of the evidence." In some criminal proceedings, such as the preliminary hearing, hearsay is admissible even though it could not be used in a civil case and would be inadmissible at trial. Does this mean that hearsay would then be admissible in a law and motion proceedings in child custody matters where there are allegations of physical or sexual abuse, but not a trial? This committee may thus wish to consider whether it is appropriate to apply rules of evidence enacted specifically for criminal proceedings to child custody cases involving allegations of abuse. IS IT APPROPRIATE TO GENERALLY APPLY CRIMINAL RULES OF EVIDENCE TO CUSTODY PROCEEDINGS? AB 612 (Beall) Page 9 of ? 5.Intent language conflicts with existing law Family Code Section 3020 states that the Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of the children shall be the court's primary concern in determining the best interest of children when making any order regarding the physical or legal custody or visitation of children. This bill would instead provide that it is the Legislature's intent that courts focus on the more specific priority of protecting children from physical and sexual abuse. Ensuring the overall health, safety, and welfare of children will undoubtedly involve protecting children from abuse where those circumstances arise, thus it is unclear why new legislative intent is necessary or desirable, particularly since not every custody or visitation case will involve allegations of abuse. 6.Procedural concerns In addition to the policy concerns discussed above, this bill also raises procedural concerns in that recent amendments have seemingly reinserted provisions which are substantively similar to those expressly rejected by the Assembly Judiciary Committee (AJC) when this bill was heard in that committee. At the time of the AJC's hearing, this bill would have provided that on or after January 1, 2010, any child custody evaluation report filed in a child custody proceeding that includes parental alienation syndrome or parent alienation shall be deemed inadmissible in that custody proceeding. This is substantively similar to provisions in the bill's current version which prohibit the court from relying on an "unproven, nonscientific theory" or accepting into evidence any finding from an expert witness or court appointed professional that has relied on such a theory. The AJC analysis of the bill raised numerous concerns, very similar to those raised here, about limiting the court's discretion to consider all relevant evidence in deciding child custody matters. After a lengthy hearing in the AJC, the chair of that committee offered the author the option of either having a vote on the author's preferred version, which the chair and vice-chair both publicly noted faced strong bipartisan opposition in that committee, or instead on the AJC's preferred version. That version instead provided that a child's expression of AB 612 (Beall) Page 10 of ? significant hostility toward a parent may, in the discretion of the court, be admitted as possible corroborating evidence that the parent has abused the child. It further provided that the court may not conclude that an accusation of child physical or sexual abuse against a parent is false based solely on the child's expression of significant hostility toward the parent. Due to the bipartisan opposition by the AJC to the author's preferred version, the author chose to have the bill amended with the AJC's preferred language. The AJC then passed that version by a bipartisan vote of 9-0 on April 28. The author's office has since stated that, "a poison pill was added into the bill rendering it virtually useless." On June 28, the author gutted the bill to remove the amendments approved by the AJC to insert its current content. Committee staff has confirmed with the AJC staff that the current version of the bill would implement policy that was explicitly disapproved by the AJC on a bipartisan basis during its hearing. This committee may wish to consider whether it would be undermining the legislative process to approve provisions that were expressly rejected by a policy committee in the other house. 7.Arguments in support In support of the bill, proponents cite research currently being undertaken by a California State University professor that "shows that parents who request protection from family courts for their children from incest or physical abuse by the child's other parent often lose custody of those children to the accused parent." They also cite to an additional report that estimates that courts in the Unites States often mistakenly place children in the custody of abusers. The National Safe Child Coalition writes: "Sadly, in far too many cases, children end up in the custody of perpetrators. Indeed, alienation claims have become ubiquitous in custody cases where domestic violence or child abuse is alleged as grounds to reject mothers' requests to limit parental access to their children . . . Perpetrators must be held responsible for their terror, harm, and lethal violence; concomitantly, court and representational practices and intervention should not be unwitting allies or silent partners of subjugation, bias, and burden. Battered women seeking safety and justice for themselves and their children should not become victims themselves of the family court system due to the use of AB 612 (Beall) Page 11 of ? nonscientific theories as a basis for child custody evaluations and decisions." The Courageous Kids Network write that their members were harmed by having one of their parents accused of alienating them from the other parent when they were children. "We were placed in the custody of our violent and sexually abusive parents because judges in family court believed we were not telling the truth about the abuse . . . We were not making it up. We had bruises, nightmare, physical illnesses, post-traumatic stress symptoms, emotional issues, and our own testimony to show that our fathers were hurting us badly." Support (to a prior version of the bill) : Mother's in Crisis Coalition; Mothers of Lost Children; Incest Survivors' Speakers Bureau; Helen Vine Detox Center; National Safe Child Coalition; Child Abuse Solutions, Inc.; Courageous Kids Network; Marin City Golden Gate Village Resident Council; California Teachers Association; California Commission on the Status of Women Opposition : Judicial Council; California Judges Association; Family Law Section of the State Bar; Association of Certified Family Law Specialists; Family Law Section of the Los Angeles County Bar Association; Association of Family Conciliation Courts; California Psychological Association; California Association of Marriage and Family Therapists; six individuals HISTORY Source : Center for Judicial Excellence; California Protective Parents Association Related Pending Legislation : None Known Prior Legislation : AB 612 (Ruskin, 2007) would have limited when, in connection with a child custody evaluation, the court can order the psychological testing of a parent and who can perform such testing. The bill also excluded nonscientific labels and diagnoses that are not consistent with standards generally accepted by the medical, psychiatric and psychological communities. This bill died on the Senate Inactive File. Prior Vote : Assembly Judiciary Committee (Ayes 9, Noes 0) AB 612 (Beall) Page 12 of ? Assembly Appropriations Committee (Ayes 15, Noes 0) Assembly Floor (Ayes 80, Noes 0) **************