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