BILL ANALYSIS Ó
AB 1807
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Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1807 (Cook) - As Amended: March 29, 2012
SUBJECT : Child Custody: Military Personnel
KEY ISSUE: SHOULD THE LAW BE CLARIFIED REGARDING HOW CHILD
CUSTODY ORDERS, MODIFIED DUE TO ONE PARENT'S MILITARY
DEPLOYMENT, REVERT TO THE ORIGINAL ORDER UPON THE PARENT'S
RETURN, PROVIDED THAT IT IS IN THE CHILD'S BEST INTEREST?
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 bill, supported by, among others, the Veterans of Foreign
Wars, Vietnam Veterans of America-California State Council and
the Family Law Section of the State Bar, clarifies the law
protecting custodial arrangements for deploying parents to
better protect the custodial rights of our servicemen and women,
while still ensuring that the best interest of children are
paramount. Current law provides that upon return from
deployment, any temporary custody order issued during the
deployment reverts back to the order prior to the deployment
unless such reversion is not in the child's best interest. This
bill provides that a court may not order a child custody
evaluation unless the party opposing reversion of the order
makes a prima facie showing that such reversion is not in the
best interest of the child. The bill is opposed by some family
law practitioners who are concerned that this provision removes
the court's discretion to order a child custody evaluation and
gives greater importance to the returning service member's
interest than to the child's. Some practitioners are also
concerned that the bill's jurisdictional provisions conflict
with the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), while others argue that those provisions are entirely
consistent with the UCCJEA.
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SUMMARY : Clarifies the law regarding modification of child
custody and visitation orders for active duty military
personnel. Specifically, this bill :
1)Provides that a court may not, as part of its review of the
temporary custody order changed as the result of a military
parent's deployment, upon return of the deploying party, order
a child custody evaluation unless the party opposing reversion
to the order prior to deployment makes a prima facie showing
that such reversion is not in the best interest of the child.
2)Provides that a relocation by the nondeploying parent during
the deployed parent's absence from the jurisdiction while a
temporary custody order is in effect shall not, by itself,
terminate the California court's exclusive and continuing
jurisdiction over the custody case.
3)States the intent of the Legislature that courts shall, to the
extent feasible within existing resources and court practices,
prioritize the calendaring of these reversion cases, avoid
unnecessary delay or continuances, and ensure that parties who
serve in the military are not penalized for their service by a
delay in appropriate access to their children.
EXISTING LAW :
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.
Requires the court, in making the order, to consider any
appropriate means by which the deploying party can maintain
frequent and continuing contact with the child by whatever
means are available. (Family Code Section 3047. Unless
stated otherwise, all further references are to that code.)
2)Provides that, if a temporary order is established pursuant to
#1, upon review of the order on return of the deploying
parent, there is a presumption that the order shall revert
back to the original order before the deployment, unless the
court determines that such a reversion is not in the child's
best interest. (Id.)
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3)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
interest and will help facilitate contact with the deploying
parent. (Id.)
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. Two years ago, the author's AB 2416 (Cook), Chap. 466,
Stats. 2010, created a process to protect custodial arrangements
when military parents are deployed in a way that benefits both
the parents and the child. This bill clarifies those provisions
to further protect service members and their families.
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
Ýservice 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 Was Modified in 2005 and then Again in 2010 to
Recognize Concerns of Deployed Military Parents : In order to
protect the custodial rights of military parents, state laws
were modified in 2005 and again in 2010. Under current law, if
a parent with custody or visitation receives temporary duty,
deployment, or mobilization orders from the military, as
defined, which require that parent to move a substantial
distance or otherwise have 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
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modified order will be considered a temporary order. When the
parent returns and seeks review of the temporary order, there is
a presumption that the temporary order will revert back to the
original order before the deployment, mobilization or temporary
duty, unless the court determines that such a reversion is not
in the child's best interest.
The presumption in current law 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. Existing law, 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 discretion to always ensure that custody
and visitation orders are in the best interests of children.
Existing law 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 allows parents and children to maintain
their bonds even through long deployments and help make the
return that much easier on all parties.
This Bill Better Clarifies Those Provisions and Further Protects
the Interests of Deploying Parents : To prevent such unnecessary
delays, this bill requires that a court may not, as part of its
review of the temporary custody order changed as the result of a
military parent's deployment, upon return of the deploying
party, order a child custody evaluation unless the party
opposing reversion makes a prima facie showing that such
reversion is not in the best interest of the child. A court may
still order a child custody evaluation, but not until the party
opposing reversion of the order makes a showing that such an
order is not in the child's best interest. Again, this ensures
the best interests of children are paramount, while still
preventing unnecessary and costly delays.
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In addition, in order to ensure that California courts retain
jurisdiction in cases, as appropriate under the UCCJEA, this
bill provides that a relocation by the nondeploying parent
during the deployed parent's absence from the jurisdiction while
a temporary custody order is in effect will not, by itself,
terminate the California court's exclusive and continuing
jurisdiction over the custody case. This should help ensure
that California courts do not lose jurisdiction when the
nondeploying parent, who has custody only under the temporary
order, temporarily moves out of state during the other parent's
deployment.
Finally, to help clarify that these reversion cases receive
appropriate priority in the family law courts, this bill states
the intent of the Legislature that courts shall, to the extent
feasible within existing resources and court practices,
prioritize the calendaring of these reversion cases, avoid
unnecessary delay or continuances, and ensure that parties who
serve in the military are not penalized for their service by a
delay in appropriate access to their children. This statement
recognizes the very real fiscal constraints under which courts
in California are now operating, but still directs the courts to
give these cases the priority they rightly deserve.
ARGUMENTS IN SUPPORT : In support of the bill, the Family Law
Section of the State Bar writes, in part, that this bill:
ÝE]nsures the non-deployed parent does not attempt to
prolong a reversion to the prior custody and visitation
order, and prolong a deployed parent's ability to gain
access to his or her child, by demanding a custody
evaluation, which often takes six to nine months to
complete? The proposed language still provides the court
with discretion to order the evaluation, so long as the
party opposing the reversion order (i.e., the non-deployed
parent) makes a prima facie showing that a reversion to the
order in place before the deployment is not in the child's
best interest. . . .
ARGUMENTS IN OPPOSITION : The Association of Family and
Conciliation Courts is concerned that the bill's limitation on a
court's ability to order custody evaluation "is not practical
and appears to give greater importance to a parent's perceived
right to what was over the child's needs now. Moreover, with a
large population of parents who are self-represented, it cannot
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be assumed that the non-deployed parent will be able to present
sufficient information or evidence to a court timely to meet the
burden created by this bill."
The Association of Certified Family Law Specialists (ACFLS) adds
that "this bill could cause emotional damage to children by
reverting back to a situation that no longer is in their best
interest, as the court was unable to properly review the
situation because the law prohibited said review." ACFLS is
also concerned that the bill conflicts with the UCCJEA.
However, the Family Law Section of the State Bar believes that
those same provisions are entirely consistent with the UCCJEA.
Prior Legislation : SB 2416 (Cook), Chap. 466, Stats. 2010,
established a process 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.
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
AMVETS-Department of California
California Association of County Veterans Service Officers
Family Law Section of the State Bar
Veterans of Foreign Wars
Vietnam Veterans of America-California State Council
One individual
Opposition
Association of Certified Family Law Specialists
Association of Family and Conciliation Courts
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
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