BILL ANALYSIS Ó
AB 365
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Date of Hearing: March 24, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 365
(Cristina Garcia) - As Amended March 11, 2015
SUBJECT: Child custody proceedings: testimony by electronic
means
KEY ISSUE: IN ORDER TO HELP PRESERVE FAMILIES, SHOULD PARENTS
WHO HAVE BEEN DETAINED OR DEPORTED BE PERMITTED TO PARTICIPATE
IN THEIR CHILDREN'S CUSTODY PROCEEDINGS THROUGH ELECTRONIC
MEANS, CONSISTENT WITH THE DUE PROCESS RIGHTS OF ALL PARTIES?
SYNOPSIS
All too often when immigrant parents are detained or deported by
Immigration and Customs Enforcement, they are, by virtue of
their detainment or deportation alone, prevented from
participating in their children's custody proceedings. Parents,
children and the court system all benefit when parents can
participate in their family law proceedings, particularly those
that involve their children. This bill seeks to reduce barriers
faced by detained or deported immigrant parents who are involved
with a family law case in California by permitting these parents
to participate in their children's custody proceedings through
electronic means. This bill is modeled after AB 2416 (Cook),
Chap. 466, Stats. 2010, which allowed for electronic access to
family law courts by deployed military members who might not be
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able to participate in their children's custody cases because of
deployment. This bill is supported by California Communities
United Institute and Service Employees International Union, and
supported, if amended, by the Family Law Section of the State
Bar if expanded to cover all parents who cannot attend their
family law proceedings. There is no opposition on file.
SUMMARY: Permits immigrant parents who have been detained or
deported to participate in their children's custody proceedings
through electronic means. Specifically, this bill:
1)Provides that if a party is either detained by Immigration and
Customs Enforcement or has been deported and that such
detention or deportation will have a material effect on that
party's ability to appear in person at a child custody
proceeding, the court shall, on the party's motion, allow that
party to present testimony and evidence, and participate in
mandatory child custody mediation by electronic means to the
extent: (a) the technology is reasonably available to the
court, and (b) the due process rights of all parties are
protected.
2)Defines "electronic means" to include, but not be limited to,
telephone, video teleconferencing, or other electronic means
of providing remote access.
3)Provides that # 1), above, does not authorize use of
electronic recording for purposes of taking official record of
the proceedings.
EXISTING LAW:
1)Establishes an order of preference to be used when determining
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custody of a child. Preference is first for one or both of
the parents, then to the person in whose home the child has
been living, and then to any other person the court deems to
be suitable. States that a relative's immigration status does
not disqualify the relative from receiving custody of a child
in a family law proceeding. (Family Code Section 3040.
Unless stated otherwise, all further references are to that
code.)
2)Provides that if a party's military deployment, mobilization,
or temporary duty will have a material effect on his or her
ability to appear in person at a regularly scheduled custody
hearing, the court shall, upon motion of the party, do either
of the following:
a) Hold an expedited hearing to determine custody and
visitation issues prior to the party's departure.
b) Allow the party to present testimony and evidence and
participate in court-ordered child custody mediation by
electronic means, including, but not limited to, telephone,
video teleconferencing, or the Internet, to the extent that
this technology is reasonably available to the court and
the due process rights of all parties are protected.
(Section 3047.)
3)Requires the court to set contested custody or visitation
matters for mediation. Allows mediators, consistent with
local rules, to submit recommendations to the court, in which
case the mediation is referred to as "child custody
recommended counseling," but still considered part of mandated
child custody mediation. (Sections 3170, 3183.)
4)Directs the court to provide reasonable efforts to assist
parents who have been deported to contact child welfare
authorities in their country of origin, identify any available
services that would substantially comply with a juvenile court
case plan requirement, document parents' participation in
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those services, and accept reports from local child welfare
authorities as to the parents' living situation, progress and
participation in services. (Welfare & Institutions Code
Section 361.5(e).)
5)Allows the court to permit parties to appear by telephone in
family law cases if the court determines that telephonic
appearance is appropriate. More generally, allows parties in
civil cases to appear by telephone, as provided. (California
Rules of Court, Rules 5.9, 3.670.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Immigration laws attempt to keep families together,
whether or not parents are deported. Child welfare policies
also strive for family reunification. This bill helps to ensure
that child custody proceedings can do the same, by reducing
barriers faced by detained or deported parents who are involved
with a family law case in California. This bill is modeled
after AB 2416 (Cook), Chap. 466, Stats. 2010, which allowed for
electronic access to family law proceedings by deployed military
members who, because of their deployment, might not otherwise be
able to participate in their children's custody cases.
To Prevent a Miscarriage of Justice in Their Absence, Military
Personnel Are Protected by the Federal Servicemembers Civil
Relief Act and California Law: In 2003 and again in 2008,
Congress updated the former Soldiers' and Sailors' Civil Relief
Act, and enacted the new Servicemembers Civil Relief Act (SCRA),
"to enable [service members] to devote their entire energy to
the defense needs of the Nation; and to provide for the
temporary suspension of judicial and administrative proceedings
and transactions that may adversely affect the civil rights of
servicemembers during their military service." (50 U.S.C.
Appendix Section 502.) The SCRA, among other things, prohibits
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default actions against service members deployed out of the
United States, limits the amount of interest that may be
assessed on debts that accrued prior to deployment, and requires
a stay of proceedings if the service member's military duty
materially affects his or her ability to appear.
In order to protect the custodial rights of deployed and
military parents, California law provides that if the military
parent's deployment will have a material effect on his or her
ability to appear in person at a regularly scheduled custody
hearing, the court must, on motion of that parent, either hold
an expedited hearing before the deployment or allow that parent
to participate in the proceeding by electronic means, to the
extent that the technology is reasonably available to the court
and the due process rights of all parties are protected. This
helps ensures that a deployed military parent's custodial rights
are protected.
This Bill Provides Similar Protection for Parents Who Cannot
Participate in Person in Their Child Custody Proceedings Because
They Have Been Detained or Deported: Under current law, if a
parent cannot participate in a child custody proceeding because
he or she has been detained or deported, the proceedings can
either occur in the parent's absence or be postponed or, if the
court allows, proceed via telephone. Often, none of these
options are best, not only for the parent but also for the
child. This bill provides an additional third alternative
identical to the one currently available to deployed military
parents: allowing the parent to participate in the court
proceedings through electronic means. While in-person
participation is always the best option, for those parents who
cannot be in court due to no fault of their own, this
alternative allows the proceeding to continue and still allows
the parent to participate.
In order to ensure that the courts can comply, this bill, like
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the deployed military parent statute, only permits participation
by electronic means to the extent the technology is reasonably
available in the court. Most importantly, and again consistent
with the deployed parent statute, this bill requires that the
alternative electronic participation method must protect the due
process rights of all parties. This ensures that the rights of
all parties to the action are protected, while still allowing
the detained or deported parent a way to participate in the
action.
This Bill is Consistent with 2010 Legislation to Eliminate
Family Reunification Barriers for Immigrant Families with
Children in the Child Welfare System: This bill continues
recent legislative action to assist immigrant families with
children. In particular, the Legislature addressed the problem
of detained or deported parents whose children become part of
the child welfare system as a result of their detention or
deportation. These parents often cannot complete necessary
reunification activities within the timeframe required. If
children of these parents are not taken in by relatives, they
may remain in the foster care system with strangers and their
parents' rights may be terminated. SB 1064 (de León), Chap.
845, Stats. 2012, created uniform, statewide policies and
practices that sought to eliminate family reunification barriers
in the child welfare system for immigrant families.
This bill is consistent with that legislation by helping ensure
that immigrant parents can still participate in their children's
custody proceedings even if they cannot physically be in court,
thus seeking to preserve immigrant families.
Family Law Section of the State Bar Supports the Bill if Amended
to Expand Electronic Access: The Family Law Section of the
State Bar (the Section) supports the bill, if amended in several
ways. First and foremost, the Section would like the bill
broadened to include "all circumstances where a parent is unable
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to appear personally for reasons outside the parent's control."
Parties today already have the ability to appear telephonically
in family law proceedings, as provided by rule of court, if the
court determines that such appearance is appropriate. Expanding
the mandate that parties must be able to appear electronically
this broadly could raise logistical and practical concerns for
the court. It may make more sense to see how the mandated
expansion works for the limited group of immigrant families,
before seeking a further mandated expansion. The Section also,
among other things, requests that the bill be expanded to allow
electronic participation not just for mediation, but also for
"recommending counseling." However, "mandatory child custody
mediation," as used in the bill, already encompasses
"recommending counseling," so the proposed change is not needed.
REGISTERED SUPPORT / OPPOSITION:
Support
California Communities United Institute
Family Law Section of the State Bar (if amended)
Service Employees International Union
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
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