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 

                   Custody and Visitation: Nonscientific Theories


          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.


          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.  

           Existing law  permits the court, in a contested child custody or  
          visitation proceeding where the court determines it is in the  


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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.

           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  

            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  
            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  

               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  



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           3.Required investigations of allegations of physical or sexual  
          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  

          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.




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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  

           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

           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)


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