BILL ANALYSIS Ó
AB 365
Page 1
ASSEMBLY THIRD READING
AB
365 (Cristina Garcia)
As Amended March 11, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+--------------------+-----------------------|
|Judiciary |9-1 |Mark Stone, Wagner, |Gallagher |
| | |Alejo, Chau, Chiu, | |
| | |Cristina Garcia, | |
| | |Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
|----------------+------+--------------------+-----------------------|
|Appropriations |16-0 |Gomez, Bigelow, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, | |
| | |Eggman, Gallagher, | |
| | |Eduardo Garcia, | |
| | |Holden, Jones, | |
| | |Quirk, Rendon, | |
| | |Wagner, Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Permits immigrant parents who have been detained or
deported to participate in their children's custody proceedings
through electronic means. Specifically, this bill:
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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
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.
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
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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.
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.
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 those
services, and accept reports from local child welfare
authorities as to the parents' living situation, progress and
participation in services.
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: According to the Assembly Appropriations
Committee, minor and absorbable General Fund court costs.
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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), Chapter 466, Statutes of 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 United States Code Appendix Section
502.) The SCRA, among other things, prohibits 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
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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 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
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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), Chapter 845, Statutes of 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.
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0000141