BILL ANALYSIS Ó AB 2365 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2365 (Nestande) As Amended June 4, 2012 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |66-0 |(April 12, |SENATE: |37-0 |(August 9, | | | |2012) | | |2012) | ----------------------------------------------------------------- Original Committee Reference: JUD. ----------------------------------------------------------------- | | | | | ----------------------------------------------------------------- SUMMARY : Requires a court when making a child custody determination to consider either parent's habitual or continual abuse of prescribed controlled substances and removes the sunset on drug testing. Specifically, this bill : 1)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. 2)Removes the January 1, 2013, sunset date for a court to order drug or alcohol testing for persons seeking custody or visitation of a child thereby permanently extending that authority. The Senate amendments remove the sunset for drug and alcohol testing. EXISTING LAW : 1)States the policies of the Legislature to assure: a) the health, safety and welfare of the child; and, b) 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. 2)Requires, in making a determination as to the best interest of AB 2365 Page 2 a child in a dissolution or custody proceeding, 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. 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. AS PASSED BY THE ASSEMBLY , this bill was substantially similar to the version approved by the Senate. FISCAL EFFECT : None 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 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, 6% 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. AB 2365 Page 3 This bill requires the court, when considering what is in a child's best interest in a custody dispute, 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. 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. In 2004, AB 1108 (Bermudez), Chapter 19, Statutes of 2004, provided courts the authority 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 removes the sunset, thereby extending these provisions indefinitely. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0004181