BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1628|
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THIRD READING
Bill No: AB 1628
Author: Fox (D)
Amended: As introduced
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 6/10/14
AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak
ASSEMBLY FLOOR : 70-0, 3/28/14 - See last page for vote
SUBJECT : Visitation rights: grandparent rights
SOURCE : Author
DIGEST : This bill allows the court to grant reasonable
visitation to a grandparent when: (1) there is a preexisting
relationship between the grandchild and grandparent; (2) the
interests of the child in having visitation with the grandparent
are balanced against right of the parent to exercise parental
authority; and (3) one of the parents is incarcerated or
institutionalized.
ANALYSIS :
Existing law:
1.Allows a court to grant reasonable visitation to a grandparent
if the court determines that visitation is in the best
interests of the child.
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2.Requires a court, prior to granting visitation, to find a
preexisting relationship with the grandparent such that
visitation is in the best interests of the child, and balance
the interest of the child in having visitation against the
parent's rights.
3.Prevents courts from granting grandparents visitation while
the natural or adoptive parents are married, unless:
The parents are currently living separately and apart on a
permanent or indefinite basis;
One or more of the parents has been absent for more than
one month without the other spouse knowing the whereabouts
of the absent spouse;
One of the parents joins in the petition with the
grandparents; or
The child is not residing with either parent.
This bill allows the court to grant reasonable visitation to a
grandparent when: (1) there is a preexisting relationship
between the grandchild and grandparent; (2) the interests of the
child in having visitation with the grandparent are balanced
against right of the parent to exercise parental authority; and
(3) one of the parents is incarcerated or institutionalized.
Background
It has long been recognized that the "Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents
to make decisions concerning the care, custody, and control of
their children." (Troxel v. Granville (2000) 530 U.S. 57, 66.)
In order to accommodate grandparents who wish to petition for
visitation rights to their grandchildren, the Legislature
enacted SB 306 (Lockyer, Chapter 832, Statutes of 1993). The
bill sought to balance a grandparent's ability to petition for
visitation rights against the parent's right to make decisions
about the care, custody, and control of their children. The
statute was subsequently upheld by the California Supreme Court
as not violating the parent's fundamental right over the
custody, care, and control over their children. (In re Marriage
of Harris (2004) 34 Cal.4th 210, 230)
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Currently, when a child's parents are married, grandparents are
restricted in their ability to petition for visitation unless
one of several circumstances exists. This bill additionally
authorizes a grandparent to petition for visitation when "one of
the parents is incarcerated or involuntarily institutionalized."
Prior Legislation
AB 2517 (Tran, Chapter 138, Statutes of 2006) allowed a
grandparent to petition the court for visitation with a
grandchild when the natural or adoptive parents are married, and
the grandchild had been adopted by a stepparent.
AB 2292 (Wolk, Chapter 301, Statutes of 2004) provided courts
with the discretion to protect the best interests of children in
granting reasonable visitation with former long-term guardians.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/12/14)
AFSCME, AFL-CIO
All Saints Church Foster Care Project
Association of Family Conciliation Courts
California Catholic Conference of Bishops
California Commission on Aging
Family Law Section of the State Bar
Legal Services for Prisoners with Children
OPPOSITION : (Verified 6/12/14)
National Parents Organization of California
ARGUMENTS IN SUPPORT : According to the author, "Grandparents
play an important role in the lives of children with
incarcerated parents. Often times for incarcerated mothers,
grandparents provide primary care to children. However, under
current law a grandparent is prohibited from filing a petition
for visitation while the parents are married, unless one of
several circumstances are present. None of the circumstances
listed addresses the situation of when a parent is incarcerated.
AB 1628 would add the condition of one parent being
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incarcerated as one of these circumstances. AB 1628 supports
the care, stability and development of children under
unfortunate circumstances."
ARGUMENTS IN OPPOSITION : The National Parents Organization of
California (NPOC) argues that this bill is an inappropriate use
of the law which could give grandparents the right to harass
their daughter-in-law or son-in-law. NPOC writes "where we find
this to be most unnerving is when the right could be exercised
in retaliation for reporting incidents of domestic abuse. Just
the threat of filing for grandparent custody could be used to
deter reports of domestic violence."
ASSEMBLY FLOOR : 70-0, 3/28/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hall, Roger Hernández, Holden, Jones, Levine,
Linder, Lowenthal, Maienschein, Melendez, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez,
Salas, Skinner, Stone, Ting, Wagner, Waldron, Weber,
Wieckowski, Wilk, Williams, John A. Pérez
NO VOTE RECORDED: Bigelow, Garcia, Hagman, Harkey,
Jones-Sawyer, Logue, Mansoor, Medina, Morrell, Yamada
AL:k 6/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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