BILL ANALYSIS                                                                                                                                                                                                    Ó






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


          SB 1206 (Walters)
          As Amended April 12, 2012 
          Hearing Date: April 24, 2012
          Fiscal: Yes
          Urgency: No
          NR


                                        SUBJECT
                                           
                             Child Abduction Prevention

                                      DESCRIPTION  

          This bill would prohibit parents in a dissolution proceeding 
          from applying for a passport or replacement passport for the 
          minor child or children without prior written consent from the 
          other parent or a court order. 

          This bill would require that when a parent is ordered to 
          surrender passports, and that parent is a foreign national, the 
          court shall request that the names of the parent and the child 
          or children be placed in the Prevent Departure Program of the 
          United States Department of Homeland Security.  This bill would 
          also require that when a parent is ordered by the court to 
          surrender the minor child or children's passports and the court 
          further prohibits the parent from applying for a new passport or 
          replacement passport for the minor child or children, the court 
          shall enter the name of the child in the Children's Passport 
          Issuance Alert Program of the United States Department of State.

          This bill would authorize courts to include in protective 
          custody warrants, issued to secure the recovery of an unlawfully 
          detained or concealed child, an order to freeze the California 
          assets of a party alleged to be in possession of the child. 

                                      BACKGROUND  

          The Synclair-Cannon Act was passed by the California Legislature 
          in 2002 in response to child abductions by parents. AB 2441 
          (Bates, Chapter 856, Statutes of 2002).  The Synclair-Cannon Act 
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          took a preventive approach, requiring courts in custody or 
          visitation proceedings to consider specified factors indicating 
          a risk of abduction and to consider implementing specified 
          preventive measures.  Over the past decade, these provisions of 
          existing law have dictated the standard California courts use to 
          determine and impose necessary restrictions when a risk of 
          parental child abduction exists.

          International child abductions are challenging to prevent with 
          state law alone.  Accordingly, federal law and international 
          agreements have attempted to address this problem.  (See Changes 
          to Existing Law.)  Despite lawmakers' efforts, parental child 
          abductions to foreign countries have almost doubled since 2006.  
          The U.S. Department of State received 1,135 new requests for 
          assistance in the return of 1,621 children to the U.S. in 2009.  
          (U.S. Dept. of State, Report on Compliance with the Hague 
          Convention on the Civil Aspects of International Child 
          Abduction, (2010) (accessed April 20, 2012).)  And, according to the 
          author, in 2011, 60 international abduction cases involving 84 
          children were opened in Orange County, California alone.

          SB 1206 seeks to add protections to existing law to further 
          prevent international parental child abduction. 

                                CHANGES TO EXISTING LAW
           
           1.Existing law  requires, upon application for dissolution or 
            legal separation, that the summons contain a temporary 
            restraining order (TRO) restraining both parties from removing 
            the minor child from the state without the prior written 
            consent of the other party and an order of the court. (Fam. 
            Code Sec. 2040(a)(1).)

             This bill  would add that in a dissolution proceeding parents 
            are also restricted from applying for a passport or 
            replacement passport for the minor child or children without 
            written consent from the other parent or a court order. 

           2.Existing law  , under the Uniform Child Custody and Enforcement 
            Act, requires state courts to respect and assist in the 
            enforcement of valid custody orders of other states and 
            countries, including assisting in the recovery of children 
            abducted by noncustodial parents.  (Fam. Code Sec. 3400 et 
            seq.)
             
                                                                      



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            Existing federal law  , under the International Child Abduction 
            Remedies Act, implements the Hague Convention on the Civil 
            Aspects of International Child Abduction, which requires 
            signatory countries, including the U.S., to return abducted 
            children to the state or country of lawful custody.  (42 
            U.S.C. 11601.) 
            
            Existing law  requires that, in cases which the court becomes 
            aware of facts indicating a possible risk of abduction, the 
            court shall determine whether measures are needed to prevent 
            the abduction of the child.  In determining whether a risk of 
            abduction exists, the court shall consider whether a party: 
                     has previously committed or threatened the following 
                 actions: taken, enticed away, kept, withheld, or 
                 concealed a child in violation of the right of custody or 
                 visitation of a person;
                     lacks strong ties to this state;
                     has strong familial, cultural or emotional ties to 
                 another state or country, including foreign citizenship 
                 (This factor shall be considered only if evidence exists 
                 in support of another factor in this section);
                     has no financial reason to remain in this state (due 
                 to unemployment, ability to work anywhere, or financial 
                 independence);
                     has engaged in planning activities that would 
                 facilitate a child's removal from the state, including 
                 quitting a job, selling or terminating the lease on a 
                 residence, closing a bank account, liquidating assets, 
                 applying for a passport, or applying for a copy of the 
                 child's birth, school, or medical records, or purchasing 
                 airplane or other travel tickets;
                     has a history of lack of parental cooperation, 
                 domestic violence, or child abuse; and
                     has a criminal record. (Fam. Code Sec. 3048(b)(1).)
             
            Existing law  provides that, if the court makes a finding that 
            there is a need for preventative measures after considering 
            the above factors, the court shall consider taking one or more 
            of the following measures to prevent abduction of the child:
                     ordering supervised visitation;
                     requiring a parent to post a bond sufficient to 
                 serve as a financial deterrent to abduction;
                     restricting either parent's right to remove the 
                 child from the county, the state or the country;
                     restricting the custodial parent's right to relocate 
                 with the child without prior court approval, or prior 
                                                                      



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                 written agreement by the noncustodial parent;
                     requiring the surrender of passports, prohibiting a 
                 parent from applying for a new passport for the child, 
                 and notifying the relevant foreign consulate of passport 
                 restrictions;
                     requiring a party to register a California order in 
                 another state as a prerequisite to allowing a child to 
                 travel to that state for visits, or to obtain a "mirror 
                 order" from a foreign country, as defined, as a 
                 prerequisite to allowing a child to travel to that 
                 country for visits;
                     requiring a party taking a child on a foreign visit 
                 to provide the child's travel itinerary, copies of 
                 round-trip airplane tickets, a list of addresses and 
                 telephone numbers where the child can be reached at all 
                 times, and an open air ticket for the left-behind parent 
                 in case the child is not returned; and
                     authorizing law enforcement assistance. (Fam. Code 
                 Sec. 3048(b)(2).)

             This bill  would require that if a parent is ordered to 
            surrender passports, and if the parent is a foreign national, 
            the court shall request that the names of the parent and the 
            child or children be placed in the Prevent Departure Program 
            of the United States Department of Homeland Security.
             
            This bill  would require that where a parent is ordered to turn 
            over passports and prohibited from applying for a new passport 
            for the minor child, the court shall enter the name of the 
            child in the Children's Passport Issuance Alert Program of the 
            United States Department of State.
             
          1.Existing law  provides that upon request of the district 
            attorney, the court may issue a protective custody warrant to 
            secure the recovery of an unlawfully detained or concealed 
            child. (Fam. Code Sec. 3134.5.) 

            This bill  would provide that the protective custody warrant 
            for the child may also contain an order to freeze the 
            California assets of the party alleged to be in possession of 
            the child.  
           
                                        COMMENT
           
          1.  Stated need for the bill  
          
                                                                      



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          The author writes:
          
             In 2010, the U.S. Department of State reported 2,488 children 
             abducted to other countries from the United States. In 2011, 
             according to the local district attorney's office, 60 
             international abduction cases involving 84 children were 
             opened in Orange County alone. 

             While the Synclair-Cannon Act developed an excellent 
             framework for preventing child abductions, there are many 
             areas where the law can be strengthened to further deter 
             international abductions from taking place. 

            It has been 10 years since the Synclair-Cannon Act was signed 
            into law and international child abductions continue to be a 
            major problem in California. The state should create more 
            barriers to international abduction by adding more protections 
            to the Family Code.

           2.Courts would be required to request that the parent and/or 
            child be added to federal abduction prevention lists
             
          Existing law authorizes the court, in custody or dissolution 
          proceedings, to take one or more specified preventative measures 
          when it becomes aware that there is a risk of child abduction by 
          one of the parties.  The preventative measures include, 
          requiring a party to surrender the child's passport, prohibiting 
          a party from applying for a new passport for the child, 
          requiring a party to post a bond sufficient to serve as a 
          financial deterrent to abduction, or the ordering of supervised 
          visitation.   Where the court orders particular preventative 
          measures and a circumstance, as specified exists, this bill 
          would have the court enter the name of child and/or party onto 
          federal abduction prevention lists. 

          Due to significant budget reductions, many California courts are 
          struggling to fulfill existing responsibilities and mandates.  
          Opponents argue that imposing additional, mandatory duties on 
          courts threatens to delay and complicate the judicial process 
          further.  In opposition to this bill, the Association of Family 
          Conciliation Courts (AFCC) points out that "Ýa]ll of the 
          provisions in this bill are either already federal law or within 
          the scope of authority for a judge to consider and order if and 
          when the evidence supports such an action."  Because SB 1206 
          would mandate court action when specified preventative measures 
          are ordered pursuant to current law, SB 1206 would impose two 
                                                                      



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          new duties on the courts as described below. 

              a)   Requiring the court to request that a parent and child 
               be added to the "Prevent Departure Program" of the U.S. 
               Department of Homeland Security

             Under existing law, when a case has been identified as a 
            potential abduction risk pursuant to one or more 
            considerations the court may choose to take a variety of 
            preventative measures.  This bill would require a court, if it 
            orders the surrender of passports and other travel documents 
            and if the parent is a foreign national, to contact the Office 
            of Children's Issues at the United States Department of State 
            and request that the parent and child be placed in the 
            "Prevent Departure Program" of the U.S. Department of Homeland 
            Security (DHS). 

            In opposition, the Judicial Council of California writes: 

          The Prevent Departure Program is a high level anti-terrorism 
          effort initiated in the wake of the September 11th attacks, and 
          it is a program about which the DHS does not provide public 
          information. The underlying law for this program contemplates 
          that law enforcement agencies will be the entities making these 
          kinds of requests because it requires cooperation from other law 
          enforcement agencies to actually prevent a person on the list 
          from exiting the country. As a result, we think it is more 
          appropriate to direct parents who are concerned that a foreign 
          national parent may try to abduct the child seek assistance from 
          law enforcement to access this program.  The court record may 
          not provide enough information to support placement in the 
          program and courts will then be in the position of investigating 
          these cases further to carry out these requests.  Such 
          investigatory and enforcement actions are not appropriate 
          judicial functions. 

            The author contends that because two specified conditions must 
            exist before courts are required to request that a parent and 
            child are placed in the Prevent Departure Program, (the court 
            must choose the preventative measure of ordering the surrender 
            of passports and the parent must be a foreign national), this 
            situation is unlikely to arise often.  

            On the other hand, as the opposition argues, where entities 
            other than the court are in a better position to act, it is 
            arguably not necessary to impose new duties on the courts 
                                                                      



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            particularly at a time when budget cutbacks have so 
            significantly threatened the justice system.   The following 
            amendment would delete this section of the bill and would 
            resolve this issue.   

               Suggested amendment:

                On page 7, delete lines 4 - 10
               
              b)   Requiring the court to request that a child's name be 
               placed in the "Children's Passport Issuance Alert Program"
           
            This bill would provide that where a risk of abduction has 
            been identified by the court pursuant to the considerations 
            listed in existing law, and the court orders the surrender of 
            passports and other travel documents and prohibits a parent 
            from ordering new or replacement passports, the court shall 
            enter the name of the child in the "Children's Passport 
            Issuance Alert Program" (CPIAP) of the United States 
            Department of State by contacting the Office of Children's 
            Issues and submitting the correct form. 

            The CPIAP website is a resource for parents allowing them to 
            enter a minor child in a Passport Lookout System.  The system 
            flags the minor child's name in all U.S. passport agencies and 
            embassies, and consulates abroad.  CPIAP requires the 
            information of the parent who is requesting that the child's 
            name be entered into the system as well, so they may serve as 
            a point of contact when alerts are issued.  The registering 
            parent is thereby provided advance notice of potential 
            preparations for international travel with the child.  (See 
             
            (accessed April 19, 2012).)

            While CPIAP does not prohibit entities other than parents from 
            entering the names of children into the program, the CPIAP 
            form is designed to be used by parents.  The website is easy 
            to navigate, and the form is in clear language.  The program 
            relies on communication with one point of contact; typically 
            the person or entity who submitted the required form.  

            In opposition to this provision, the Judicial Council writes: 

          Because access to this program is easy for parents to accomplish 
          and because parents are in the best position to maintain ongoing 
                                                                      



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          contact with this program we believe it is inappropriate and 
          unnecessary to place this burden on the court. Courts are 
          struggling to meet existing statutory mandates in the face of 
          unprecedented budget reductions.  As a result, it is likely that 
          placing this responsibility on the court will only delay the 
          completion of this task and not provide optimal protection to 
          these children. 


            Given the number of children abducted to foreign countries 
            every year (2,488 in 2010), and modestly assuming the number 
            of potential abductions to foreign countries is at least 
            equal, requiring the court to act as a point of contact for 
            each child entered into CPIAP would be extremely burdensome.  
            Because the CPIAP program is accessible to parents, and 
            parents are in a better position than courts to maintain 
            ongoing contact with the program regarding their child, 
            imposing this responsibility on the courts appears to be 
            unnecessary.  The following amendment would remove this 
            provision of the bill and resolve this issue:

             Suggested amendment: 
           
            On page 7, delete lines 14 - 22
             
          1.Orders to freeze the California assets of a party alleged to 
            be in possession of the child
           
          Current law provides that a protective custody warrant may be 
          issued for a child who has been abducted. (Fam. Code Sec. 
          3134.5(a).)  This bill would authorize the court to include in 
          the protective custody warrant an order to freeze the California 
          assets of the party alleged to be in possession of the child.  

          While the potential of freezing the California assets of a party 
          may function as a deterrent to child abduction, or prove 
          inconvenient enough to promote a party's compliance with law 
          enforcement in the event of child abduction, this provision of 
          SB 1206 is vague and could arguably lead to unintended 
          consequences.  For example, it is not clear what it means to be 
          the party "alleged to be in possession of the child," and what 
          standard would have to be met before a party's assets could be 
          frozen under this provision. Would an allegation that a party 
          has illegally detained or concealed the child be enough to 
          result in a court freezing the assets of the party alleged to be 
          in custody of the child? The author indicates that the intent of 
                                                                      



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          the bill is that there would need to be reasonable suspicion 
          that the parent actually took the child before a court would be 
          able to freeze the parent's California assets.

          In addition, it is not clear from this provision which assets of 
          the parent alleged to be in possession of the child would be 
          frozen.  Would the court freeze all assets, including real 
          property?  Freezing real property assets triggers due process 
          concerns and raises questions about the notice provided to 
          co-owners of the real property as well.  Because the author's 
          intent is that a party alleged to be in unlawful possession of 
          the child would not have immediate access to money, thereby 
          making continued concealment of the child more difficult, this 
          provision should be limited to immediately accessible monetary 
          assets, such as bank accounts.  The following amendment would 
          resolve this issue:



             Suggested amendment:
           
            On page 9, line 8, after the period insert "For purposes of 
            this subdivision, "assets" shall mean funds contained in a 
            bank account held in California." 
           
            2.TRO would restrain parties from applying for passports
             
          This bill would restrain parents from applying for a new or 
          replacement passport for a minor child or children without the 
          prior written consent of the other party or a court order 
          authorizing the action. Under existing law, parties in 
          dissolution or custody proceeding must obtain consent from the 
          opposing party or an order from the court before taking a child 
          out of state.  The provision in this bill requiring consent from 
          the opposing party or an order of the court before applying for 
          a new or replacement passport for a minor child, is consistent 
          with existing law in that it can act as a barrier to parties 
          from taking children from the state without prior consent or 
          approval.  This provision does not require the automatic 
          surrender of a child's passport to the court, and therefore does 
          not prevent parties from using existing passports for reasons 
          other than removing the child from the state.  

          This provision would add a layer of protection against 
          international child abduction without burdening the family law 
          courts.  As written, this provision is automatic, and imposes no 
                                                                      



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          additional duties on the court. It is effectively an automatic 
          temporary restraining order, and implies that the court may take 
          more drastic preventative measures if a parent is in violation.  
           Secondly, passport requests generally take time, typically four 
          to six weeks, to process.  In custody proceedings, this may be 
          enough time for a parent to take preventative actions on his or 
          her own.  The parent may enter their child's information into 
          CPIAP (see Comment 2(b)), and thereby receive a notification 
          when the other party applies for a passport for the minor child. 
           The parent may also have adequate time to file additional 
          restraining orders or arrange for a more secure custody order.  

          This provision of the bill, which would require parental consent 
          or a court order before new or replacement passports may be 
          issued, may be effective when coupled with a court order to 
          surrender passports and travel documents.  Under current law, 
          after appropriate consideration of abduction risk factors, the 
          court may require one or more specified preventative measures, 
          including that a parent surrender passports and other travel 
          documents.  In theory, where a parent has entered a child in 
                                                                           CPIAP, and the court has ordered both the surrender of passports 
          and other travel documents, and issued a prohibition on the 
          issuance of new passports, removing the minor child from the 
          country without the other party's knowledge or consent should be 
          very difficult.  





           Support  :  Children's Rights Council of Japan; Andrew Ko 

           Opposition  :  Association of Family Conciliation Courts; 
          California Judges Association; Judicial Council of California

                                        HISTORY
           
           Source  :  Bring Abducted Children Home (BACHome)

           Related Pending Legislation  :  None Known 

           Prior Legislation  : AB 2441 (Bates, Chapter  856, Statutes of 
          2002) enacted the Synclair-Cannon Child Abduction Prevention 
          Act. AB 2441 requires a court, in cases in where the facts 
          indicate that there may be a risk of child abduction, to 
          consider specified factors in determining the risk of abduction 
                                                                      



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          and to determine whether specified abduction preventions are 
          needed.

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