BILL ANALYSIS Ó
AB 2365
Page 1
Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2365 (Nestande) - As Amended: March 29, 2012
SUBJECT : CHILD CUSTODY: ABUSE OF CONTROLLED SUBSTANCES
KEY ISSUE : SHOULD THE COURT, AS PART OF ITS BEST INTEREST
DETERMINATION IN A CHILD CUSTODY DISPUTE, CONSIDER THE HABITUAL
OR CONTINUAL ABUSE OF PRESCRIPTION MEDICATION BY ONE PARENT,
JUST AS IT NOW CONSIDERS THE HABITUAL OR CONTINUAL ABUSE OF
ALCOHOL AND ILLEGAL DRUGS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
When a family court is called on to make a child custody
determination, the fundamental consideration for the court is
what is in the child's best interest. Under current law, when
considering the child's best interest, the court must take into
account either parent's habitual or continual illegal use of
controlled substances or habitual or continual abuse of alcohol.
This measure requires a court to also consider the habitual or
continual abuse of controlled substances. This change will
ensure that judges consider either parent's abuse of legally
prescribed drugs when making a child custody determination, but
will still leave judges with the ultimate discretion to make a
decision in the child's best interest.
This bill is supported by, among others, Mothers Against
Prescription Drug Abuse which believes that this bill is
necessary to protect the well-being of children when parents are
abusing prescription drugs. The bill is opposed by the
Association of Family and Conciliation Courts, which is
concerned that the bill is unnecessary, could increase the
litigation between parents and could have a chilling effect on
parents seeking treatment for their medical problems. The bill
is also opposed by the Drug Policy Alliance.
SUMMARY : Requires a court when making a child custody
determination to consider either parent's habitual or continual
abuse of prescribed controlled substances. Specifically, this
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bill adds either parent's habitual or continual abuse of
prescribed controlled substances to the list of factors that a
court must consider when making a best interest determination in
an action for dissolution or child custody or visitation.
EXISTING LAW :
1)States the policies of the Legislature to assure (1) the
health, safety and welfare of the child; and (2) that children
have frequent and continuing contacts with both parents,
consistent with the best interest of the child. When the
policy of frequent and continuing contact conflicts with the
policy to assure the health, safety and welfare of the child,
requires custody decisions to be made in a manner to ensure
the health, safety and welfare of the child and the safety of
all family members. (Family Code Section 3020. Unless stated
otherwise, all further references are to that code.)
2)In making a determination as to the best interest of a child
in a dissolution or custody proceeding, requires the court to
consider, among other relevant factors, the following:
a) The health, safety and welfare of the child;
b) Any history of abuse by one parent to the other parent
or any child, as specified;
c) The nature and amount of contacts with both parents; and
d) The habitual or continual illegal use of controlled
substances, or the habitual or continual abuse of alcohol
by either parent. (Section 3011.)
3)Authorizes the court, until January 1, 2013, in any custody or
visitation proceeding or in any guardianship proceeding, to
order any person seeking custody or visitation 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 the evidence that there is the habitual,
frequent, or continual illegal use of controlled substances,
or the habitual or continual abuse of alcohol by the person.
(Section 3041.5.)
COMMENTS : When a family court is called on to make a child
custody determination, the fundamental consideration for the
court is what is in the child's best interest. Under current
law, when considering the child's best interest, the court must
take into account either parent's habitual or continual illegal
AB 2365
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use of controlled substances or habitual or continual abuse of
alcohol. This measure requires a court to also consider the
habitual or continual abuse of controlled substances. This
change will ensure that judges consider either parent's abuse of
legally prescribed drugs when making a child custody
determination. In support of the bill, the author notes that,
according to the National Survey on Drug Use and Health, six
percent of adults age 18 to 25 report nonmedical use of
prescription drugs in the last month, underscoring his concern
about rampant abuse of prescription medication.
It makes imminent sense for a court, when considering what is in
a child's best interest, to consider not just habitual or
continual illegal use of drugs and habitual or continual abuse
of alcohol, but also the habitual or continual abuse of
prescription medications. Like alcohol, prescription
medications may be legal, but are also subject to abuse when
used not as prescribed. If such habitual or continual abuse
exists, a judge should consider that abuse when making a custody
determination. This provision does not take away the judge's
discretion to make a decision that is in the child's best
interest. Rather, this bill simply ensures that a judge
considers a parent's abuse of prescription medication as one
factor in determining the child's best interest.
ARGUMENTS IN SUPPORT : In support of the bill, Mothers Against
Prescription Drug Abuse writes:
We feel the judicial system has a big responsibility in
providing security to the health and well being of our
children when drug abuse is present in the parent of that
child. The judicial laws need to change with the times and
the times are changing in regards to how prescribed drugs
are mis-used in our society.
ARGUMENTS IN OPPOSITION : The Association of Family and
Conciliation Courts (AFCC) opposes the bill, writing that the
current version of the bill is better than as originally
drafted, but it is still concerned that "Ýa]lthough everyone
agrees that people abuse medication at times, there is NO
consensus among medical experts as to how you either define such
abuse or determine it." It is important to keep in mind that
the term "abuse" is the current standard for the court to
consider when alcohol is involved.
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AFCC is also concerned that the bill could have "a chilling
effect on parents wanting and needing to seek treatment and help
for problems requiring medication, often resulting in them
self-medicating to cope and thereby reduce their parenting
ability." However, the bill does not require courts to consider
parental use of prescription drugs, but rather the abuse of such
drugs, which could actually encourage parents to seek medical
help, rather than try to self-medicate.
In addition, the Drug Policy Alliance opposes the bill due to
concern that parents may be discouraged from seeking treatment
for chronic pain and that the bill could infringe on parents'
health privacy rights.
REGISTERED SUPPORT / OPPOSITION :
Support
Mothers Against Prescription Drug Abuse
Two individuals
Opposition
Association of Family and Conciliation Courts
Drug Policy Alliance
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334