BILL NUMBER: AB 2365 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 4, 2012
AMENDED IN SENATE APRIL 25, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Nestande
(Coauthors: Assembly Members Buchanan, Jeffries, and Olsen)
FEBRUARY 24, 2012
An act to amend Section Sections
3011 and 3041.5 of the Family Code, relating to child
custody.
LEGISLATIVE COUNSEL'S DIGEST
AB 2365, as amended, Nestande. Family law: child custody.
Existing law requires a family court to determine the best
interest of the child for purposes of deciding child custody in
proceedings for dissolution of marriage, nullity of marriage, legal
separation of the parties, petitions for exclusive custody of a
child, and proceedings under the Domestic Violence Prevention Act. In
making that determination, existing law requires the court to
consider specified factors, including whether either of the child's
parents habitually or continually uses alcohol or illegal drugs. The
court may require independent corroboration of an allegation that a
parent is habitually or continually using controlled substances or
illegal drugs.
This bill would require a family court to consider, in determining
the best interest of the child in custody proceedings, either parent'
s habitual or continual abuse of prescribed controlled substances.
Existing law, until January 1, 2013, authorizes a court to require
any person who is seeking custody of, or visitation with, a child
who is the subject of a custody, visitation, or guardianship
proceeding, to undergo testing for the illegal use of controlled
substances and the use of alcohol under specified circumstances, as
specified.
This bill would delete the repeal clause for these provisions and
thus extend the operation of these provisions indefinitely.
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 3011 of the Family Code is amended to read:
3011. In making a determination of the best interest of the child
in a proceeding described in Section 3021, the court shall, among
any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking
custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or
with whom he or she has had a caretaking relationship, no matter how
temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or
person seeking custody, or a person with whom the parent or person
seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court
may require substantial independent corroboration, including, but not
limited to, written reports by law enforcement agencies, child
protective services or other social welfare agencies, courts, medical
facilities, or other public agencies or private nonprofit
organizations providing services to victims of sexual assault or
domestic violence. As used in this subdivision, "abuse against a
child" means "child abuse" as defined in Section 11165.6 of the Penal
Code and abuse against any of the other persons described in
paragraph (2) or (3) means "abuse" as defined in Section 6203 of this
code.
(c) The nature and amount of contact with both parents, except as
provided in Section 3046.
(d) The habitual or continual illegal use of controlled
substances, the habitual or continual abuse of alcohol, or the
habitual or continual abuse of prescribed controlled substances by
either parent. Before considering these allegations, the court may
first require independent corroboration, including, but not limited
to, written reports from law enforcement agencies, courts, probation
departments, social welfare agencies, medical facilities,
rehabilitation facilities, or other public agencies or nonprofit
organizations providing drug and alcohol abuse services. As used in
this subdivision, "controlled substances" has the same meaning as
defined in the California Uniform Controlled Substances Act, Division
10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision
(b) or (d) have been brought to the attention of the court in the
current proceeding, and the court makes an order for sole or joint
custody to that parent, the court shall state its reasons in writing
or on the record. In these circumstances, the court shall ensure that
any order regarding custody or visitation is specific as to time,
day, place, and manner of transfer of the child as set forth in
subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the
parties stipulate in writing or on the record regarding custody or
visitation.
SEC. 2. Section 3041.5 of the Family
Code is amended to read:
3041.5. (a) In any custody
or visitation proceeding brought under this part, as described in
Section 3021, or any guardianship proceeding brought under the
Probate Code, the court may order any person who is seeking custody
of, or visitation with, a child who is the subject of the proceeding
to undergo testing for the illegal use of controlled substances and
the use of alcohol if there is a judicial determination based upon a
preponderance of evidence that there is the habitual, frequent, or
continual illegal use of controlled substances or the habitual or
continual abuse of alcohol by the parent, legal custodian, person
seeking guardianship, or person seeking visitation in a guardianship.
This evidence may include, but may not be limited to, a conviction
within the last five years for the illegal use or possession of a
controlled substance. The court shall order the least intrusive
method of testing for the illegal use of controlled substances or the
habitual or continual abuse of alcohol by either or both parents,
the legal custodian, person seeking guardianship, or person seeking
visitation in a guardianship. If substance abuse testing is ordered
by the court, the testing shall be performed in conformance with
procedures and standards established by the United States Department
of Health and Human Services for drug testing of federal employees.
The parent, legal custodian, person seeking guardianship, or person
seeking visitation in a guardianship who has undergone drug testing
shall have the right to a hearing, if requested, to challenge a
positive test result. A positive test result, even if challenged and
upheld, shall not, by itself, constitute grounds for an adverse
custody or guardianship decision. Determining the best interests of
the child requires weighing all relevant factors. The court shall
also consider any reports provided to the court pursuant to the
Probate Code. The results of this testing shall be confidential,
shall be maintained as a sealed record in the court file, and may not
be released to any person except the court, the parties, their
attorneys, the Judicial Council, until completion of its authorized
study of the testing process, and any person to whom the court
expressly grants access by written order made with prior notice to
all parties. Any person who has access to the test results may not
disseminate copies or disclose information about the test results to
any person other than a person who is authorized to receive the test
results pursuant to this section. Any breach of the confidentiality
of the test results shall be punishable by civil sanctions not to
exceed two thousand five hundred dollars ($2,500). The results of the
testing may not be used for any purpose, including any criminal,
civil, or administrative proceeding, except to assist the court in
determining, for purposes of the proceeding, the best interest of the
child pursuant to Section 3011 and the content of the order or
judgment determining custody or visitation. The court may order
either party, or both parties, to pay the costs of the drug or
alcohol testing ordered pursuant to this section. As used in this
section, "controlled substances" has the same meaning as defined in
the California Uniform Controlled Substances Act (Division 10
(commencing with Section 11000) of the Health and Safety Code).
(b) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.