BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1188|
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                                    CONSENT


          Bill No:  SB 1188
          Author:   Wright (D)
          Amended:  5/12/10
          Vote:     21

           
           SENATE BANKING, FINANCE, AND INS. COMMITTEE  : 9-1, 4/7/10
          AYES:  Calderon, Cogdill, Correa, Cox, Florez, Kehoe,  
            Padilla, Price, Runner
          NOES:  Liu
          NO VOTE RECORDED:  Lowenthal

           SENATE JUDICIARY COMMITTEE  :  4-0, 5/4/10
          AYES:  Corbett, Harman, Hancock, Leno
          NO VOTE RECORDED:  Walters


           SUBJECT  :    Child custody:  disabled parent

           SOURCE  :     Author


           DIGEST  :    This bill provides that a parents disability may  
          not form the basis for an order granting child custody or  
          visitation to another party, or for an order imposing a  
          condition or limitation on custody or visitation, unless  
          the court makes a finding that the award of custody or  
          visitation to the disabled parent would not be in the best  
          interest of the child.

           ANALYSIS  :    Existing law:

          1.Requires a court to award custody of a child according to  
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            the child's best interest.  Existing law further requires  
            a court, when determining the best interest of the child,  
            to consider the health, safety, and welfare of the child,  
            among other factors.  

          2.Provides that a violation of an individual's rights under  
            the Americans with Disabilities Act (ADA) constitutes a  
            violation of state law.

          Existing federal law, the ADA, provides that no individual  
          shall be discriminated against on the basis of disability  
          in the full and equal enjoyment of the goods, services,  
          facilities, privileges, advantages, or accommodations of  
          any place of public accommodation by any person who owns,  
          leases, or leases to, or operates a place of public  
          accommodation. 

          This bill provides that a parent's disability may not form  
          the basis for an order granting child custody or visitation  
          to another party, or for an order imposing a condition or  
          limitation on custody or visitation, unless the court makes  
          a finding that the award of custody to the disabled parent  
          would not be in the best interest of the child.

          This bill provides that it applies to any proceeding  
          regarding custody or visitation, including, but not limited  
          to, a request for modification of an existing order for  
          custody or visitation.

           Background
           
          Since 1969, persons with disabilities have been protected  
          under Civil Code Sections 54 and 54.1, which entitle  
          individuals with disabilities and medical conditions to  
          full and free access to and use of roadways, sidewalks,  
          buildings and facilities open to the public, hospitals and  
          medical facilities, and housing.  After Congress enacted  
          the ADA in 1990 (42 U.S.C. Section 12181), the state made a  
          violation of the ADA also a violation of Section 54 or  
          54.1.  The state protections provided to individuals with  
          disability are independent of, and comparatively higher  
          than those provided under the ADA. 

          In the context of child custody proceedings, case law has  







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          long held that a judge may not simply rely on a parent's  
          physical disabilities as prima facie evidence of a parent's  
          unfitness as a parent.  (  In re Marriage of Carney  (1979) 24  
          Cal.3d 725, 736.)  

          In  In re Marriage of Carney  , the California Supreme Court  
          held that a trial court had abused its discretion in  
          ordering that custody of two children be transferred to the  
          mother because the father's physical disability would  
          prevent a "normal father-son" relationship.  The father had  
          had sole custody of the children for nearly five years,  
          during which the mother did not visit or make any  
          contribution to their support.   The mother moved for an  
          order awarding her custody of both children after a jeep  
          accident left the father in quadriplegic condition.  The  
          trial court regarded the father's physical disability as  
          prima facie evidence of his unfitness as a parent, and  
          indicated that there could be no "normal" relationship  
          between the father and his sons because he could not engage  
          in physical sporting activities.  (  Id  . at 736-737.)  The  
          California Supreme Court, in condemning this rationale as  
          stereotyping, stated that a trial court should inquire into  
          a person's actual and potential physical capabilities,  
          learn how he or she has adapted to the disability and  
          manages its problems, consider how the other members of the  
          household have adjusted to it, and take into account the  
          special contributions the person may make to the family  
          despite, or even because of, the disability.  (  Id  .)   
          Weighing these and other relevant factors, the Court stated  
          that the trial court should then carefully determine  
          whether the parent's condition will in fact have a  
          substantial and lasting adverse effect on the best  
          interests of the child.  (  Id  .) 

          Following the holding in  Carney  , the court in  In re  
          Marriage of Levin  (1980) 102 Cal.App.3d 981, held that the  
          physically disabled mother of a five year-old child was  
          entitled to a new custody hearing since the trial court had  
          based its award of permanent custody to the father on the  
          limitations that the mother's disability would impose on  
          the most "normal" possible life for the child.  Although  
          the trial court appeared to have a sound basis on which to  
          award custody to the father (the child had been in the  
          father's custody for most of her life), the trial court had  







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          impermissibly based its decision on the mother's physical  
          limitation of being confined to a wheelchair as a result of  
          a stroke.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  5/11/10)

          American Retirees Association
          AMVETS, Department of California
          Association of Certified Family Law Specialists
          Disability Rights California
          Fathers and Families 

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          a parent's disability may often be raised as an issue in  
          proceedings pertaining to child custody and visitation.   
          The author asserts that many, if not most, disabled parents  
          are fully capable of parenting their children, and that a  
          disability, by and of itself, should not be used against a  
          disabled parent by a court when determining custody and  
          visitation.  


          JA:nl  5/12/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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