BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 2365 (Nestande)
          As Amended June 4, 2012
          Hearing Date: June 19, 2012
          Fiscal: No
          Urgency: No
          NR
                    

                                        SUBJECT
                                           
                              Family Law: Child Custody

                                      DESCRIPTION  

          This bill would require courts, in determining the best interest 
          of a child in custody proceedings, to consider either parent's 
          continual or habitual abuse of prescribed controlled substances. 
           

          Existing law, until January 1, 2013, authorizes a court to order 
          a person seeking custody of a child to undergo drug or alcohol 
          testing, as specified.  This bill would remove the sunset date, 
          thereby permanently extending the authority for a court to order 
          drug or alcohol testing. 

                                      BACKGROUND 

          Existing law provides that it is the public policy of the state 
          to assure that the health, safety, and welfare of children are 
          the court's primary concern in determining the best interest of 
          children. Unless it conflicts with the protection of a child's 
          health, safety or welfare, it is also the policy of the state to 
          assure a child's frequent and continuing contact with both 
          parents after the parents have separated or dissolved their 
          marriage, and to encourage parents to share in the rights and 
          responsibilities of child rearing.  (Fam. Code Sec. 3020.)  

          In determining what custody arrangement is in the best interest 
          of a child, the court must take into account, among any other 
          factors it finds relevant: the health, safety and welfare of the 
          child; any history of abuse or domestic violence; and the nature 
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          and amount of contact with both parents.  SB 384 (Haynes, 
          Chapter 836, Statues of 1996) required courts to additionally 
          consider the habitual or continual illegal use of controlled 
          substances, or the habitual or continual abuse of alcohol by 
          either parent in determining the best interest of a child.  
          Additionally, in 2004, AB 1108 (Bermudez, Chapter 19 Statutes of 
          2004) was enacted to provide the authority for courts to order 
          any person seeking custody or visitation with a child to undergo 
          testing for alcohol or drugs, under specified guidelines.  This 
          provision was codified at Family Code Section 3041.5 and has a 
          sunset date of January 1, 2013. 

          Since the enactment of SB 384 and AB 1108, there has been a rise 
          in the abuse of prescription drugs.  According to the Huffington 
          Post, "Ŭt]hree out of every 10 people killed on California roads 
          in 2010 tested positive for legal and/or illegal drugs, 
          according to the news release. ? Drivers high on prescription 
          drugs, marijuana or other drugs often go under-reported because 
          drug testing is expensive and there is no established legal 
          limit." (Miles, Drugs & Driving More Fatal Than Drunk Driving In 
          California (Feb. 29, 2012) Huffington Post,  Ŭas of May 29, 2012].)

          The Office of National Drug Control Policy writes, "Ŭt]he number 
          of prescriptions filled for opioid pain relievers - some of the 
          most powerful medications available - has increased dramatically 
          in recent years. From 1997 to 2007, the milligram-per-person use 
          of prescription opioids in the U.S. increased from 74 milligrams 
          to 369 milligrams, an increase of 402%. In addition, in 2000, 
          retail pharmacies dispensed 174 million prescriptions for 
          opioids; by 2009, 257 million prescriptions were dispensed, an 
          increase of 48%. ?ŬT]hese increases mirror increases in 
          prescription drug abuse." (Office of National Drug Policy, 
          Prescription Drug Abuse  Ŭas of May 29, 2012].)

          In response to concern over prescription drug abuse, this bill 
          would require the court to consider a parent's abuse of 
          prescription drugs when determining the best interest of a child 
          in custody proceedings.  Also, this bill would remove the sunset 
          date in Family Code Section 3041.5, thereby permanently 
          authorizing a court to order drug or alcohol testing, as 
          specified, for any person seeking custody or visitation with a 
          child.

                                                                      



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                                CHANGES TO EXISTING LAW
           
           Existing law  provides that the policies of the Legislature are 
          to assure the health, safety and welfare of the child, and that 
          children have frequent and continuing contact with both parents, 
          consistent with the best interest of the child.  When these two 
          policies conflict, existing law 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.  (Fam. Code Sec. 
          3020.)

           Existing law  provides that in determining the best interest of a 
          child in a dissolution or custody proceeding, the court must 
          consider, among any other relevant factors:
           the health, safety, and welfare of the child;
           any history of abuse by one parent to the other parent or any 
            child, as specified;
           the nature and amount of contacts with both parents; and
           the habitual or continual illegal use of controlled 
            substances, or the habitual or continual abuse of alcohol by 
            either parent.  (Fam. Code Sec. 3011.)
           Existing law  authorizes the court, until January 1, 2013, to 
          order any person seeking custody or visitation to be tested 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.  (Fam. Code Sec. 
          3041.5.)

           This bill  would remove this sunset date thereby permanently 
          extending the authority for a court to order drug or alcohol 
          testing for persons seeking custody or visitation of a child. 
           
          This bill  would require a court, when making a child custody 
          determination, to consider either parent's habitual or continual 
          abuse of prescribed controlled substances.  
                                           
                                       COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

             Prescription drug abuse is on the rise and there are 
             currently no safeguards in existing law for courts to take 
                                                                      



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             that into consideration when making a custody decision. 

             The Sacramento Bee reports, "The neonatal unit isn't supposed 
             to be a drug rehab ward.  But the drugs their mothers took 
             are causing more newborns in the Sacramento area to spend 
             their first days of life suffering through the pains of 
             withdrawal. According to diagnosis reports from 2008 to 2010 
             submitted by hospitals to the state, the number of infants 
             suffering withdrawal in the four-county area has doubled 
             since the start of the decade."

           2.Abuse of prescription drugs
           
          This bill would require a court to consider a parent's abuse of 
          prescribed controlled substances, in addition to use of illegal 
          controlled substances or alcohol abuse, when determining what 
          custody or visitation order is in the best interest of a child. 

          As a result, this bill would require courts to look into only a 
          parent's abuse, not authorized use of, prescribed controlled 
          substances.  The National Institute on Drug Abuse defines 
          prescription drug abuse as "the intentional use of a medication 
          without a prescription; in a way other than as prescribed; or 
          for the experience or feeling it causes."  (National Institute 
          on Drug Abuse, Topics in Brief: Prescription Drug Abuse 
          (December 2011) 
          http://www.drugabuse.gov/publications/topics-in-brief/ 
          prescription-drug-abuse> Ŭas of June 12, 2012].)
          Judges appear to be well-equipped to distinguish between the 
          "use" and "abuse" of a substance because they must make this 
          distinction frequently when faced with allegations that a 
          parent's alcohol abuse threatens the best interest of a child.  
          Prescription medications, like alcohol, are legal when consumed 
          under certain conditions, but clearly have the potential to be 
          abused.  Under existing law, in determining whether a parent 
          abuses alcohol in a manner that compromises a child's best 
          interest, a court will look to the amount of alcohol consumed, 
          the frequency, and the resulting behavior.  The court will also 
          take into consideration the age of the child and the type of 
          visitation or custody sought.  This type of analysis arguably 
          seems appropriate for courts to use when evaluating whether a 
          parent is abusing prescribed controlled substances as required 
          under this bill.  

          The Association of Certified Family Law Specialists (ACFLS), in 
          opposition, states: 
                                                                      



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             ?if adopted, an inquiry is required into every case with 
             regard to prescriptions of controlled substances whether or 
             not there is any evidence that the substance is being abused. 
              Controlled substances could include common treatments for 
             ordinary diagnoses such as anxiety, coughs, depression, pain 
             not responsive to aspirin, etc. ? Such allegations regarding 
             prescribed medical/psychological/psychiatric treatments have 
             great potential to invade the privacy of parents where there 
             is no evidence of abuse through substance.

          Likewise, the Drug Policy Alliance, also in opposition writes 
          that this bill "infringes on patient privacy rights protected by 
          the California Constitution by either forcing parents to report 
          prescribed medications or authorizing the court to access a 
          parent's medical records."

          The author responds:

             Courts routinely asses and judge independent evidence to 
             gauge the credibility of allegations in custody cases.  An 
             assessment regarding prescription drug abuse is no different 
             than one regarding allegations of alcoholism or illegal drug 
             abuse.  Under existing law courts already have access to 
             parents' medical, psychiatric, psychological, financial and 
             employment records.  Court-appointed evaluators pursuant to 
             Evidence Code section 730, a routine event in contested 
             custody disputes, obtain all of this information in making 
             custody recommendations to the court.  The information is 
             kept out of the court file to protect privacy concerns.  
             Courts are well accustomed to this and do not permit fishing 
             expeditions in their  courts without probable cause. The 
             inclusion of prescribed controlled substances does not 
             deviate from what is already allowed under current law.

          Arguably, authorizing the court to consider this in every case 
          would appear to place all substance abuse, including use of 
          illicit drugs, alcohol abuse, and abuse of prescribed controlled 
          substances, at the same level of significance in determining 
          what is in the best interest of a child.






                                                                      



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           3.Drug and alcohol testing  

          In 2004, AB 1108 (Bermudez, Chapter 19, Statutes of 2004) was 
          enacted to provide the authority for courts to order any person 
          seeking custody or visitation with a child to undergo testing 
          for alcohol or drugs, if the court determined that the person is 
          a habitual, frequent, or continual illegal user of controlled 
          substances, or a habitual or continual abuser of alcohol.  For a 
          court to make these determinations, the finding must be 
          supported by a preponderance of the evidence, which may include 
          a conviction for the illegal use or possession of a controlled 
          substance within the past five years. Originally these 
          provisions were set to sunset on January 1, 2008.  This sunset 
          was extended by AB 1164 (Tran, Chapter 140, Statutes of 2009) 
          until January 1, 2013.  This bill would remove the sunset, 
          thereby extending these provisions indefinitely. 

          AB 1108 also required the Judicial Council to study the 
          implementation of the AB 1108, and issue a final report to the 
          Legislature.  That report was published in July of 2007, and 
          contains a number of findings regarding the implementation of 
          Family Code Section 3014.5.  (Judicial Council, Drug and Alcohol 
          Testing in Child Custody Cases: Implementation of Family Code 
          Section 3041.5, July 2007, found at < http:// 
          www.courts.ca.gov/documents/AB1108Report052307final.pdf>.)

          The Judicial Council reported that there is evidence to indicate 
          that substance abuse issues arise commonly in family law cases, 
          and that:  

             Family law attorneys in the focus groups estimated half of 
             their cases involved substance abuse issues with one or both 
             parents. A statewide study of contested custody and 
             visitation cases in mediation found that drug or alcohol 
             abuse is an issue in 27 percent of those cases.  For custody 
             and visitation disputes not resolved in mediation, judicial 
             officers indicated that drug or alcohol issues were raised 
             fairly frequently. Sixty-five percent of judicial officers 
             responded that drug/alcohol issues were raised often or very 
             often. (Judicial Council, Drug and Alcohol Testing, p. 10.) 

          In opposition to this bill the Drug Policy Alliance writes "the 
          reality is that drug testing is a limited instrument and does 
          not provide evidence of a person's ability or fitness to parent. 
          ? ŬE]ven assuming the results are accurate, drug testing does 
          not provide information to determine whether a person is drug 
                                                                      



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          dependent or whether he or she is an occasional user; and does 
          not identify persons in need of treatment."

          The report issued by the Judicial Council indicates that 
          existing law and practice arguably take these concerns into 
          account.  According to the report, because courts must determine 
          that the person is a habitual, frequent, or continual user of 
          controlled substances, or a habitual or continual abuser of 
          alcohol, by a preponderance of the evidence, most judicial 
          officers order tests in less than 40 percent of these cases.  
          According to surveyed judicial officers, most parties ordered to 
          undergo testing comply with the order and produce a valid drug 
          test, free of tampering. Once a problem with substance abuse is 
          identified through testing, what a court does next is driven by 
          the best interest of the child.  A positive result, by itself, 
          will not disqualify a person from receiving custody or 
          visitation.  Courts must instead weigh all relevant factors in 
          determining the best interest of the child. (See Comment 2; Fam. 
          Code Sec. 3041.5.)    

          The Judicial Council reports, "Judicial officers value the 
          availability of testing for drug or alcohol use.  According to 
          judges, they need this authority to make decisions in the best 
          interest of the child, particularly if there is a dispute 
          between parties about whether substance abuse exists. ? The data 
          demonstrate that the legislation is being utilized 
          conservatively when compared to how often the issue of substance 
          abuse is raised in a courtroom or mediation session."

          Given the necessity for drug and alcohol testing to protect the 
          best interests of children in custody cases, and the lack of 
          issues in the eight years since courts have been given this 
          authority, it  is arguably appropriate to permanently remove the 
          January 1, 2013 sunset on a court's authority to order drug or 
          alcohol testing. 


           Support  :  California Judges Association; Judicial Council of 
          California; Mothers Against Prescription Drug Abuse; an 
          individual

           Opposition  :  Association of Certified Family Law Specialists 
          (ACFLS); Association of Family and Conciliation Courts (AFCC); 
          California Partnership to End Domestic Violence; Drug Policy 
          Alliance

                                                                      



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                                        HISTORY
           
           Source  :  An Individual

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          SB 384 (Haynes, Chapter 836, Statutes of 1996) See Background.

          AB 1108 (Bermudez, Chapter 19, Statutes of 2004) See Background. 


          AB 541 (Harman, Chapter 302, Statutes of 2005) authorized the 
          juvenile courts to order drug and alcohol testing for a person 
          seeking guardianship or visitation in a guardianship.

           Prior Vote  :

          Assembly Floor (Ayes 66, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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