BILL ANALYSIS AB 2416 Page 1 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 AB 2416 Page 2 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 AB 2416 Page 3 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 AB 2416 Page 4 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, AB 2416 Page 5 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 AB 2416 Page 6 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 AB 2416 Page 7 Opposition None on file Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334