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)
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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
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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
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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
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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
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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.
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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
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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?
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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
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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
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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)
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Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Floor (Ayes 80, Noes 0)
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