BILL ANALYSIS
SB 1188
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Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1188 (Wright) - As Amended: June 3, 2010
PROPOSED CONSENT (As Proposed to be Amended)
SENATE VOTE : 33-0
SUBJECT : CHILD CUSTODY: DISABLED PARENT
KEY ISSUE : SHOULD THE LEGISLATURE CODIFY THE SUPREME COURT'S
DECISION IN IN RE MARRIAGE OF CARNEY TO REITERATE THAT A COURT
SHALL NOT USE A PARENT'S DISABILITY AS THE BASIS FOR AN ORDER
GRANTING OR MODIFYING CHILD CUSTODY OR VISITATION TO ANOTHER
UNLESS THE COURT FINDS THE AWARD OF CUSTODY OR VISITATION TO THE
DISABLED PARENT WOULD NOT BE IN THE BEST INTEREST OF THE CHILD?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill seeks to codify the California
Supreme Court's unanimous decision in in In re Marriage of
Carney ((1979) 24 Cal.3d 725 to reiterate that a family court
shall not use a parent's disability as the basis for an order
granting or modifying child custody or visitation to another
unless the court finds the award of custody or visitation to the
disabled parent would not be in the best interest of the child.
The author is amending the bill in Committee such that it will
merely state "It is the intent of the Legislature in enacting
this section to codify the decision of the Supreme Court in In
re Marriage of Carney (1979) 24 Cal.3d 725 with respect to
custody and visitation determinations by the court." The bill
has no known opposition.
SUMMARY : Seeks to codify existing case law that makes clear
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 or visitation to the disabled parent would not be in the
best interest of the child.
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EXISTING LAW requires a court to award custody of a child
according to 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. (Family Code Sections 3011; 3020; 3040.)
COMMENTS : In the context of child custody proceedings, case law
has long held that a judge may not simply rely on a parent's
disabilities as prima facie evidence of a parent's unfitness as
a parent. (In re Marriage of Carney (1979) 24 Cal.3d 725, 736.)
This bill would simply codify this important case law in the
Family Code.
According to the author, a parent's disability may often -- and
sadly inappropriately -- be raised as an issue in proceedings
pertaining to child custody and visitation. The author notes
that many, if not most, disabled parents are fully capable of
parenting their children lovingly and effectively, and that a
disability, by and of itself, should never be used in custody
determinations unless the court expressly determines it is
necessary to do so in the best interests of the child.
Existing Case Law : 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 a 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, in a unanimous decision written by Justice Mosk, 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.)
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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 prior award
of permanent custody to the father on the limitations that the
mother's disability would purportedly impose on the "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 impermissibly based its decision on
the mother's physical limitation of being confined to a
wheelchair as a result of a stroke.
This bill thus appropriately seeks to add to our Family Code
this important legal principle. This bill merely codifies the
California Supreme Court's holding in Carney to make clear in
our Family Code that our family courts are making decisions
consistent with the best interest of the child, and not solely
on outmoded and deeply hurtful stereotypes regarding individuals
with physical or mental disabilities.
Author's Amendment : In order to ensure there is no inadvertent
confusion and unnecessary litigation over any of the current
provisions of the bill which seek to explain the Court's holding
in In re Marriage of Carney, the author has prudently decided to
amend the bill to limit it to the following codified language
only:
SECTION 1. Section 3049 is added to the Family Code, to read:
3049. It is the intent of the Legislature in enacting this
section to codify the full reasoning and holding decision of the
Supreme Court in In re Marriage of Carney (1979) 24 Cal.3d 725
with respect to custody and visitation determinations by the
court .
REGISTERED SUPPORT / OPPOSITION :
Support (to prior versions of the bill)
SB 1188
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American Retirees Association
AMVETS, Department of California
Association of Certified Family Law Specialists
Disability Rights California
Fathers and Families
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334