BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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