BILL NUMBER: AB 1807 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Cook
FEBRUARY 21, 2012
An act to amend Section 3047 of the Family Code, relating to child
custody.
LEGISLATIVE COUNSEL'S DIGEST
AB 1807, as introduced, Cook. Family law: child custody.
Existing law provides that a party's absence, relocation, or
failure to comply with custody and visitation orders is not, by
itself, sufficient to justify modifying a custody or visitation order
if the party's absence, relocation, or failure is due to his or her
activation to military service, mobilization in support of combat or
other military operation, or military deployment out of state, as
defined. Existing law authorizes a court to issue a temporary order
for custody and visitation for the period in which the party will be
deployed, mobilized, or on temporary duty. Under existing law, there
is a presumption that, upon the return of that party, the order shall
revert back to the custody order that was in place before the
modification unless the reversion is not in the best interest of the
child.
This bill would require a military parent's motion to revert back
to a prior custody order to be given priority over other custody or
family law cases, except those cases that are already entitled to
priority. Additionally, this bill would permit the presumption of
reversion to the prior custody order to be rebutted. This bill would
require a party opposing reversion to the prior custody order to make
or allege a prima facie case that the reversion would not be in the
child's best interest. If the opposing party does not present a prima
facie case, this bill would require the court to reestablish and
revert to the prior custody order in place before the deployment.
Under this bill, neither a child's absence from the state during a
parent's deployment nor a nondeploying parent's relocation during a
parent's deployment while a temporary modification order is in effect
would terminate the family court's jurisdiction for later custody
modifications. This bill would also prohibit a parent's deployment
from being used as a basis for asserting that the state court is an
inconvenient forum for custody orders.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3047 of the Family Code is amended to read:
3047. (a) A party's absence, relocation, or failure to comply
with custody and visitation orders shall not, by itself, be
sufficient to justify a modification of a custody or visitation order
if the reason for the absence, relocation, or failure to comply is
the party's activation to military duty or temporary duty,
mobilization in support of combat or other military operation, or
military deployment out of state.
(b) (1) If a party with sole or joint physical custody or
visitation receives temporary duty, deployment, or mobilization
orders from the military that require the party to move a substantial
distance from his or her residence or otherwise has a material
effect on the ability of the party to exercise custody or visitation
rights, a any necessary modification of
the existing custody order shall be deemed a temporary custody order
made without prejudice , which shall be subject to review
and reconsideration upon the return of the party from military
deployment, mobilization, or temporary duty. If
(2) If the temporary order is
reviewed upon return of the party from military deployment,
mobilization, or temporary duty, there shall be a rebuttable
presumption that the custody order shall revert to the order
that was in place before the modification, unless the court
promptly determines that it is not in the best interest of the
child. In determining that reversion is not in the best interest
of the child, the party opposing the reversion must make or allege a
prima facie case that the court determines may, if timely and
proven, overcome the rebuttable presumption. If no prima facie case
is presented, the court shall reestablish and revert back to the
prior orders that were in place before the deployment of a military
parent. No evidentiary hearing is required if the facts presented by
the opposing party do not raise a significant issue or issues as to
the military parent's right to revert back to the prior orders.
(3) A motion by a military parent to revert back to the prior
custody order shall be given priority over all other custody and
family law matters except those that are already entitled to priority
under existing law. The military parent shall not be penalized or
punished upon return from deployment by any delay or dilatory tactics
by the other parent or party or by the court.
(2)
(4) (A) If the court makes a temporary
custody order, it shall consider any appropriate orders to ensure
that the relocating party can maintain frequent and continuing
contact with the child by means that are reasonably available.
(B) Upon a motion by the relocating party, the court may grant
reasonable visitation rights to a stepparent, grandparent, or other
family member if the court does all of the following:
(i) Finds that there is a preexisting relationship between the
family member and the child that has engendered a bond such that
visitation is in the best interest of the child.
(ii) Finds that the visitation will facilitate the child's contact
with the relocating party.
(iii) Balances the interest of the child in having visitation with
the family member against the right of the parents to exercise
parental authority.
(C) Nothing in this paragraph shall increase the authority of the
persons described in subparagraph (B) to seek visitation orders
independently.
(D) The granting of visitation rights to a nonparent pursuant to
subparagraph (B) shall not impact the calculation of child support.
(c) If a party's deployment, mobilization, or temporary duty will
have a material effect on his or her ability, or anticipated ability,
to appear in person at a regularly scheduled hearing, the court
shall do either of the following:
(1) Upon motion of the party, hold an expedited hearing to
determine custody and visitation issues prior to the departure of the
party.
(2) Upon motion of the party, allow the party to present testimony
and evidence and participate in court-ordered child custody
mediation by electronic means, including, but not limited to,
telephone, video teleconferencing, or the Internet, to the extent
that this technology is reasonably available to the court and
protects the due process rights of all parties.
(d) A relocation by a nondeploying parent during a period of a
deployed parent's absence while a temporary modification order for a
parenting plan is in effect shall not terminate the exclusive and
continuing jurisdiction of the court for purposes of later
determining custody or parenting time under this chapter.
(e) When a court of this state has issued a custody or visitation
order, the absence of a child from this state during the deployment
of a parent shall be considered a "temporary absence" for purposes of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)), and the court shall retain exclusive
continuing jurisdiction under Section 3422.
(f) The deployment of a parent shall not be used as a basis to
assert inconvenience of the forum under Section 3247.
(d)
(g) For purposes of this section, the
following terms have the following meanings:
(1) "Deployment" means the temporary transfer of a member of the
Armed Forces in active-duty status in support of combat or some other
military operation.
(2) "Mobilization" means the transfer of a member of the National
Guard or Military Reserve to extended active-duty status, but does
not include National Guard or Military Reserve annual training.
(3) "Temporary duty" means the transfer of a service member from
one military base to a different location, usually another base, for
a limited period of time to accomplish training or to assist in the
performance of a noncombat mission.
(e)
(h) It is the intent of the Legislature that
this section provide a fair, efficient, and expeditious process to
resolve child custody and visitation issues when a party receives
temporary duty, deployment, or mobilization orders from the military.