BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1188| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 1188 Page 2 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 SB 1188 Page 3 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 SB 1188 Page 4 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 **** END ****