BILL ANALYSIS Ó AB 365 Page 1 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 AB 365 Page 2 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 AB 365 Page 3 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 AB 365 Page 4 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 AB 365 Page 5 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 AB 365 Page 6 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 AB 365 Page 7 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 AB 365 Page 8