BILL ANALYSIS Ó
SB 1206
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1206 (Walters) - As Amended: May 1, 2012
As Proposed to be Amended
SENATE VOTE : 37-0
SUBJECT : Child Abduction Prevention
KEY ISSUE : IN ORDER TO PREVENT CHILD ABDUCTIONS DURING DIVORCE
PROCEEDINGS, SHOULD PARENTS BE PREVENTED FROM APPLYING FOR A
PASSPORT FOR THEIR CHILDREN WITHOUT THE CONSENT OF THE OTHER
PARENT OR A COURT ORDER?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill seeks to prevent child abduction during divorce
proceedings. This bill prohibits 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 also
authorizes 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 bank accounts
of the party in possession of the child. This bill is sponsored
by Bring Abducted Children Home and supported by the Children's
Rights Council of Japan. The bill is opposed by Association of
Family and Conciliation Courts, which argues that the provision
allowing a child abductor's bank account to be frozen could have
unintended consequences and cause considerable harm to the
adductor's family. The author has proposed amendments to
address this concern. This bill is also opposed by the
California Partnership to End Domestic Violence, which is
concerned about placing additional restraints on victims of
domestic violence in custody proceedings who may need to "flee
with their children to protect their safety and that of their
children."
SUMMARY : Limits passport application for children during
dissolution proceedings and allows a court to order the freezing
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of certain assets when it issues a protective custody warrant
for a child. Specifically, this bill :
1)Provides that, in a dissolution proceeding, parents are
restricted from applying for a passport or replacement
passport for any minor child without written consent from the
other parent or a court order.
2)Provides that a protective custody warrant issued by a court
to secure the recovery of an unlawfully detained or concealed
child may also contain an order to freeze the California
assets, defined as funds held in a California bank account, of
the party alleged to be in possession of the child.
EXISTING LAW :
1)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 or an order of the court. (Family Code Section
2040(a)(1). Unless stated otherwise, all further statutory
references are to that code.)
2)Requires, under the Uniform Child Custody Jurisdiction and
Enforcement Act, 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. (Section 3400 et seq.)
3)Implements, under the federal International Child Abduction
Remedies Act, 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.)
4)Requires a court, in cases which the court becomes aware of
facts indicating a possible risk of abduction, to determine
whether measures are needed to prevent the abduction of a
child. In determining whether a risk of abduction exists,
requires the court to consider, among other things, whether a
party:
a) Has previously committed or threatened certain actions,
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including taking or concealing a child in violation of
another person's custody rights;
b) Lacks strong ties to this state;
c) Has strong ties to another state or country, including
foreign citizenship;
d) Has no financial reason to remain in this state;
e) Has engaged in planning activities that would facilitate
a child's removal from the state;
f) Has a history of lack of parental cooperation, domestic
violence, or child abuse; and
g) Has a criminal record. (Section 3048(b)(1).)
5)Provides, if the court makes a finding that there is a need
for preventative measures after considering the factors in
#4), the court must consider taking one or more of the
following measures to prevent abduction of the child:
a) Ordering supervised visitation;
b) Requiring a parent to post a bond;
c) Restricting either parent's right to remove the child
from the county, the state or the country;
d) Restricting the custodial parent's right to relocate
with the child, as specified;
e) Requiring the surrender of passports and prohibiting a
parent from applying for a new passport for the child;
f) Requiring a party to register a California order in
another state as a prerequisite to allowing a child to
travel to that state;
g) 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
h) Authorizing law enforcement assistance. (Section
3048(b)(2).)
6)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. (Section
3134.5.)
COMMENTS : The Synclair-Cannon Act, passed by the Legislature in
2002 in response to child abductions by parents, takes a
preventive approach to preventing abductions, requiring courts
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in custody or visitation proceedings to consider specified
factors indicating a risk of abduction and implement specified
preventive measures. (AB 2441 (Bates), Chap. 856, Stats. 2002.)
Over the past decade, these provisions 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. Despite
lawmakers' efforts, parental child abductions to foreign
countries have almost doubled since 2006. This bill seeks to
add protections to existing law to further prevent international
parental child abduction.
In support of the bill, 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.
Restraining order prevents parties from applying for passports
for children of parents in divorce proceedings, except as
provided . Under existing law, parties in dissolution or custody
proceedings must obtain consent from the opposing party or an
order from the court before taking a child out of state. This
bill restrains parents from applying for a new or replacement
passport for a minor child without either the prior written
consent of the other parent or a court order authorizing the
application.
This provision adds a layer of protection against international
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child abduction without burdening the family law courts. As
written, this provision is automatic, and imposes no 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 file additional restraining orders
or arrange for a more secure custody order.
This provision 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 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.
Freezing the California bank accounts of a parent who has
abducted a child . Current law provides that a court, at the
request of a district attorney, may issue a protective custody
warrant for a child who has been abducted. This bill authorizes
the court to include in the protective custody warrant an order
to freeze the assets of the party alleged to be in possession of
the child. The bill defines assets as the funds held by that
party in a California bank account. The author's intent is to
prevent a party alleged to be in unlawful possession of a child
from having immediate access to money, thereby making continued
concealment of the child more difficult.
However, the Association of Family and Conciliation Courts
(AFCC) is concerned that the bill fails to set forth not only
the showing necessary to freeze a bank account, but also the
criteria for releasing the account, other than recovery of the
child. AFCC argues that the freezing of the parent's bank
account could endanger the family's support and access to funds
for legal representation.
Proposed Amendment : To address this issue, the author proposes
creating a procedure so that a parent can challenge the freezing
of their assets in court. This will allow a judge, in the right
factual situation, to ensure justice is done. The following
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language provides a remedy for early release of the funds and
better defines the funds that are subject to attachment:
Family Code Section 3134.5 (a) 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. The request by the district attorney shall include a
written declaration under penalty of perjury that a warrant
for the child is necessary in order for the district attorney
to perform the duties described in Sections 3130 and 3131. The
protective custody warrant for the child shall contain an
order that the arresting agency shall place the child in
protective custody, or return the child as directed by the
court. 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. The protective
custody warrant may be served in any county in the same manner
as a warrant of arrest and may be served at any time of the
day or night. For purposes of this subdivision, "assets" means
funds contained in a bank account held in a Depository
Institution, as defined in Section 866(a) of the Financial
Code in California.
(b) Upon a declaration of the district attorney that the child
has been recovered or that the warrant is otherwise no longer
required, the court may dismiss the warrant without further
court proceedings.
(c) Upon noticed motion, any order freezing assets made
pursuant to this section may be terminated, modified or
vacated by the court upon a finding that the release of the
assets will not jeopardize the safety or best interests of the
child.
(d) In the event that an asset freeze order under this section
has been entered, and, the court has dismissed the warrant
pursuant to paragraph (b), the district attorney shall
immediately serve notice on the holders of any frozen assets
that the freeze order has been terminated.
The Los Angeles County District Attorney's Office (LADA)
supports the bill if amended to continue to permit a court to
freeze a child abductor's bank account, but take that
responsibility away from the district attorney. The LADA writes
that "Ýf]reezing the assets of the taking parent is a useful
tool to force the parent to return" home, but is concerned about
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the cost of enforcing the order by notifying the bank. The LADA
would prefer that either parent whose child has been abducted or
the court itself be responsible for enforcing the order to
freeze assets. Given that such an order will likely be issued
rarely, it is anticipated that the cost of enforcement - which
will almost always be limited to simply serving the order on the
bank - will be minimal.
Arguments in support : In support of the bill, the sponsor,
Bring Abducted Children Home, writes:
As parents of intentionally kidnapped children, we
understand the enormous challenges faced once a child is
abducted. We live it every day of our lives. There is no
end to the nightmare when your child or children have been
kidnapped to a foreign country by the other parent.
Prevention is the best possible course of action. Senate
Bill 1206 will provide essential additional barriers to
prevent international child abduction. It will save
children from ongoing parental alienation (which is child
abuse) and it will save Californian families.
ARGUMENTS IN OPPOSITION : The California Partnership to End
Domestic Violence (CPEDV) opposes the bill arguing that it
places additional restraints on parents in custody proceedings,
when victims of domestic violence may need to "flee with their
children to protect their safety and that of their children."
The passport limitation may create a particular barrier for
undocumented immigrant victims of domestic violence who need the
child's passport in order to be included in a special visa.
Additionally, the group argues, that allowing a court to freeze
a victims' assets could negatively impact their "ability to gain
economic stability and rebuild their lives independent from
their abuser."
Consent of both parents is required before a passport will be
issued for a child under 16. However, it is possible to get an
exception from consent of one of the parents in special
circumstances. This bill would not prevent a parent from using
such an exception to get a passport. However, the parent would
first have to get the court's permission. Thus, this bill still
allows victims of domestic violence to protect themselves and
their children, but it does create an additional hurdle to go
through to get a passport - a court order. That additional
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hurdle also makes it harder for others to wrongly abduct their
children.
While CPEDV raises legitimate concerns that this bill may
inadvertently create additional hurdles for victims of domestic
violence to try and navigate, those hurdles could very well keep
an abuser from abducting a victim's child and further
victimizing the family. In addition, while this bill does
create additional hurdles, as proposed to be amended it allows
parents to seek relief from those hurdles. A passport can be
applied for with the court's consent and a frozen bank account
can be released if the requesting parent can show that such
release will not jeopardize the child's safety or best
interests. Again, while this bill could add hurdles to a victim
fleeing an abusive relationship, it could also prevent an
abusive parent from abducting a child.
REGISTERED SUPPORT / OPPOSITION :
Support
Bring Abducted Children Home (sponsor)
Children's Rights Council of Japan
Los Angeles County District Attorney's Office (if amended)
Several individuals
Opposition
Association of Family and Conciliation Courts
California Partnership to End Domestic Violence
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334