BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2416
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          Date of Hearing:  April 6, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     AB 2416 (Cook) - As Amended:  March 23, 2010

                                  PROPOSED CONSENT

           SUBJECT  :  Child Custody:  Military Personnel

           KEY ISSUE:   SHOULD CHILD CUSTODY ORDERS, MODIFIED DUE TO ONE  
          PARENT'S MILITARY DEPLOYMENT, BE PRESUMED TO REVERT TO THE  
          ORIGINAL ORDER UPON THE PARENT'S RETURN, PROVIDED THAT IT IS IN  
          THE CHILD'S BEST INTERESTS?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS
          
          The wars in Afghanistan and Iraq and the resulting military  
          deployments have significantly affected service members and  
          their families, sometimes causing considerable disruptions in  
          existing custody and visitations arrangements between parents.   
          This non-controversial bill, sponsored by the American Retirees  
          Association and supported by the Family Law Section of the State  
          Bar and Fathers & Families, protects custodial arrangements for  
          deploying parents in three ways.  First if a parent with custody  
          or visitation receives a military deployment that requires that  
          parent to move a substantial distance or otherwise materially  
          affects his or her ability to exercise custody or visitation  
          rights, and the court modifies the custody or visitation order  
          accordingly, the modified order will be considered a temporary  
          order.  When the parent returns and seeks review of the  
          temporary order, this bill creates a presumption that the  
          temporary order should revert back to the original order before  
          the deployment, unless the court determines that such a  
          reversion is not in the child's best interests.  The presumption  
          in this bill correctly protects the rights of the deployed  
          parent, while ensuring the best interests of the child are  
          always paramount.  

          Second, this bill helps to maintain contact between the  
          deploying parent and the child by directing the court, upon  
          making a temporary order, to consider additional orders that  








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          help that parent maintain frequent and continuing contact with  
          the child during the deployment.  

          Finally, this bill allows for visitation with the child by close  
          relatives of a deployed parent if the visitation is in the  
          child's best interests and if it will help facilitate contact  
          with the deployed parent.  However, consistent with the  
          constitutional right of parents to make decisions concerning the  
          care, custody, and control of their children, set forth by the  
          U.S. Supreme Court in  Troxel v. Granville  , the bill specifically  
          prevents a court from ordering visitation with relatives over  
          the objections of a fit parent.  
                     
           SUMMARY  :  Provides for modification of child custody and  
          visitation orders for active duty military personnel to protect  
          the custodial rights of the deployed parent while ensuring the  
          best interests of the child are always paramount.  Specifically,  
           this bill  :   

          1)Provides that, if a party with custody or visitation receives  
            temporary duty, deployment, or mobilization orders from the  
            military, as defined, that requires that party to move a  
            substantial distance or otherwise has a material effect on the  
            party's ability to exercise custody or visitation rights, and  
            if the court modifies the custody order accordingly, the  
            modified order shall be considered a temporary order.

          2)Provides that, if a temporary order is established pursuant to  
            #1, upon review of the order by the court there is a  
            presumption that the order shall revert back to the original  
            order before the military deployment, unless the court  
            determines that such a reversion is not in the child's best  
            interests.

          3)Requires the court, in making an order pursuant to #1, to  
            consider any appropriate means by which the deploying party  
            can maintain frequent and continuing contact with the child by  
            whatever means are available.

          4)Allows the court, upon a motion by the deploying military  
            parent, to order visitation with a stepparent, grandparent or  
            other family member with a preexisting close relationship with  
            the child, provided the visitation is in the child's best  
            interests and will help facilitate contact with the deploying  
            parent.  However, does not increase the authority of these  








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            relatives to seek visitation orders independently.  Moreover,  
            does not authorize the court to order such visitation over the  
            objections of a parent if it would violate the fundamental  
            rights of that parent.  Provides, also, that such an order  
            will not impact the child support calculation.

          5)Requires the court, if a party's military duty will have a  
            material effect on that party's ability to appear in person at  
            a regularly scheduled hearing, to, upon motion of the party,  
            (a) hold an expedited hearing to determine custody or  
            visitation issues prior to departure; or (b) allow the party  
            to present evidence, and participate in child custody  
            mediation, by electronic means, to the extent the technology  
            is reasonably available to the court and the due process  
            rights of all parties are protected.

           EXISTING LAW  :  

          1)Provides that a party's absence from the home or failure to  
            comply with a custody or visitation order may not, in and of  
            itself, justify a modification of the order if the reason for  
            the absence or failure is the party's activation to military  
            service and deployment out-of-state.  (Family Code Section  
            3047.  Unless stated otherwise, all further references are to  
            that code.)

          2)Requires the court, upon application of a service member or on  
            its own motion, to grant a stay of 90 days or more in any  
            civil action or proceeding, including any custody proceeding,  
            at any time prior to final judgment if certain conditions are  
            satisfied.  The application must set forth how the current  
            military duty requirements materially affect the service  
            member's ability to appear.  Provides that, upon expiration of  
            the mandatory stay, the court may grant an additional stay,  
            upon application of the service member demonstrating that  
            continuing military duty will have a material affect on his or  
            her ability to appear.  Requires the court, if it refuses to  
            grant the additional stay, to appoint counsel to represent the  
            service member.  (Servicemembers Civil Relief Act, 50 U.S.C.  
            Appendix Section 522.)  

          3)Provides that a final custody or visitation order may be  
            modified by the court only if some significant change in  
            circumstances indicates that a different arrangement would be  
            in the child's best interest.  (  Marriage of LaMusga  (2004) 32  








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            Cal.4th 1072;  In re Marriage of Burgess  (1996) 13 Cal.4th 25.)

          4)Generally allows the court to grant reasonable visitation to a  
            stepparent or grandparent if that visitation is in the best  
            interests of the child and does not conflict with the rights  
            of a birth parent or rights of the parents to exercise  
            parental authority.  (Sections 3101-04.)

          5)Provides a process for modification of child support  
            obligations for active duty military personnel.  (Section  
            3651(c).)

           COMMENTS  :  The wars in Afghanistan and Iraq and the resulting  
          military deployments have significantly affected service members  
          and their families, sometimes causing considerable disruptions  
          in existing custody and visitations arrangements between  
          parents.  This non-controversial bill seeks, when parents are  
          deployed, to protect custodial arrangements in a way that  
          benefits both the parents and the child. 

           Military Personnel Protected by the Federal Servicemembers Civil  
          Relief Act  :  In 2003 and again in 2008, Congress updated the  
          former Soldiers' and Sailors' Civil Relief Act, and enacted the  
          new Servicemembers Civil Relief Act (SCRA), "to provide for,  
          strengthen, and expedite the national defense . . . to enable  
          [service members] to devote their entire energy to the defense  
          needs of the Nation; and to provide for the temporary suspension  
          of judicial and administrative proceedings and transactions that  
          may adversely affect the civil rights of servicemembers during  
          their military service."  (50 U.S.C. Appendix Section 502.)  The  
          SCRA, among other things, prohibits default actions against  
          service members deployed out of the United States, limits the  
          amount of interest that may be assessed on debts that accrued  
          prior to deployment, and requires a stay of proceedings if the  
          service member's military duty materially affects his or her  
          ability to appear.
                    
          California Law Modified in 2005 to Recognize Concerns of  
          Deployed Military Parents  :  Under current law, a final custody  
          or visitation order may be modified by the family court only if  
          some significant change in circumstances indicates that a  
          different arrangement would be in the child's best interest.   
          However, based on concerns of military personnel, the law was  
          modified in 2005 to provide that a party's absence from the home  
          or failure to comply with a custody or visitation order may not,  








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          in and of itself, justify a modification of that order if the  
          reason for the absence or failure is the party's activation to  
          military service and deployment out-of-state.  This provision  
          was designed to prevent a parent from losing custody or  
          visitation with his or her child based solely on that parent's  
          out-of-state deployment.

           This Bill Furthers Those Protections, While Ensuring that the  
          Best Interests of the Child are Always Paramount  :  This bill  
          takes these protections a step farther and provides that if a  
          parent with custody or visitation receives temporary duty,  
          deployment, or mobilization orders from the military, as those  
          terms are defined in the bill, that requires that parent to move  
          a substantial distance or otherwise has a material effect on his  
          or her ability to exercise custody or visitation rights, and the  
          court modifies the custody or visitation order accordingly, such  
          modified order will be considered a temporary order.  When the  
          parent returns and seeks review of the temporary order, this  
          bill creates a presumption that the temporary order will revert  
          back to the original order before the deployment, unless the  
          court determines that such a reversion is not in the child's  
          best interests.  

          The presumption in this bill correctly protects the rights of  
          the deployed parent, while ensuring the best interests of the  
          child are always paramount.  Thus, for example, if a child was  
          very young at the time of deployment, a court may allow the  
          deployed parent's custodial time to increase gradually over a  
          period of time, to allow the child to adjust to the revised  
          living arrangement.  Alternatively, a returning parent may have  
          mental or physical health issues that affect his or her  
          parenting ability and require an adjustment of the prior custody  
          order.  This bill, while making it clear that custodial orders  
          changed as the result of military deployment should revert to  
          the original order upon return of the deployed parent, provides  
          courts with sufficient discretion to ensure always that custody  
          and visitation orders are in the best interests of children.  

          This bill also helps to maintain contact between the deploying  
          parent and the child by directing the court, upon making a  
          temporary order, to consider additional orders that help the  
          deploying parent maintain frequent and continuing contact with  
          the child during the deployment by whatever means are available.  
           This will allow parents and children to maintain their bonds  
          even through long deployments and help make the return that much  








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          easier on all parties.

           Visitation with Relatives During Periods of Military Deployment  :  
           It has long been recognized that the "Due Process Clause of the  
          Fourteenth Amendment protects the fundamental right of parents  
          to make decisions concerning the care, custody, and control of  
          their children."  (Troxel v. Granville (2000) 530 U.S. 57, 66.)   
          In order to accommodate grandparents who wish to petition for  
          visitation rights to their grandchildren, legislation has been  
          enacted that balances a grandparent's ability to petition for  
          visitation rights against the parents' right to make decisions  
          about the care, custody and control of their children.  The  
          statute was upheld by the California Supreme Court as not  
          violating the parent's fundamental right over the custody, care  
          and control over their children.  (In re Marriage of Harris  
          (2004) 34 Cal. 4th 210, 230.)

          Consistent with the Troxel limitations, this bill allows for  
          visitation with the child by close relatives when a parent is  
          deployed.  Under this bill, a court may, upon a motion by the  
          deploying parent, order visitation with a stepparent,  
          grandparent or other family member with a preexisting close  
          relationship with the child, provided the visitation is in the  
          child's best interests and will help facilitate contact with the  
          relocating parent.  However, consistent with Troxel, the bill  
          specifically states that it does not increase the authority of  
          these relatives to seek visitation orders independently and it  
          does not authorize the court to order such visitation over the  
          objections of a fit parent.  Also, to ensure that any such  
          visitation orders with relatives do not unnecessary open up  
          child support fights, the bill makes clear that visitation with  
          relatives while a parent is deployed does not impact the child  
          support calculation.

           Prior Legislation  :  SB 1082 (Morrow and Ducheny), Chap. 154,  
          Stats. 2005, facilitated a process whereby deployed military  
          personnel can seek a modification of their child support orders.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Retirees Association (sponsor)
          Family Law Section of the State Bar
          Fathers & Families








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           Opposition 
           
          None on file

           Analysis Prepared by  :    Leora Gershenzon / JUD. / (916)  
          319-2334