BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 365 (Cristina Garcia)
Version: March 11, 2015
Hearing Date: June 9, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Child custody proceedings: testimony by electronic means
DESCRIPTION
This bill would require the court to allow a party, whose
deportation or detention by the federal Department of Homeland
Security materially affects his or her ability to appear at a
child custody proceeding, to present testimony and evidence, and
participate in mandatory child custody mediation, by electronic
means.
BACKGROUND
Courts must generally order social workers to provide services
to reunify a family if the parent has not voluntarily
relinquished his or her parental rights. (Welf. & Inst. Code
Sec. 360(a).) Reunification plans must be appropriate and based
on the unique facts of the family. If parents successfully
complete the reunification plan, and reunification is in the
best interest of the child, children are typically released to
the custody of the parent. In 2008, California expanded this
concept of tailoring reunification plans to the unique facts of
each family when it enacted AB 2070 (Bass, Chapter 482, Statutes
of 2008). AB 2070 required that courts take into consideration,
among other factors, the particular barriers incarcerated and/or
institutionalized parents encounter in accessing court-mandated
reunification services, including parent-child bonding and the
likelihood of the parent's discharge within the reunification
timeframe.
Service members, who are often unable to participate in
contested custody and visitation proceedings due to deployment,
have also been given certain protections under both federal and
state law. SB 1082 (Morrow and Ducheny, Chapter 154, Statutes
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of 2005) created an expedited process for the modification of
child support orders for service members who are deployed
out-of-state. AB 2416 (Cook, Chapter 466, Statutes of 2010)
further added to those protections by authorizing a court to
allow a deployed parent to participate in child custody
proceedings and mediation by electronic means.
Similar to AB 2416, this bill would help ensure that detained
and/or deported parents are able to participate in custody
proceedings and mediation by allowing them to participate by
electronic means.
CHANGES TO EXISTING LAW
Existing law 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:
hold an expedited hearing to determine custody and visitation
issues prior to the party's departure; or
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. (Fam. Code
Sec. 3047.)
Existing law requires the court to set contested custody or
visitation matters for mediation, and allows mediators,
consistent with local rules, to submit recommendations to the
court. (Fam. Code Secs. 3170, 3183.)
Existing law requires the court to order reasonable
reunification services to assist parents who have been
incarcerated, institutionalized, detained, or deported including
contacting welfare authorities in a deported parent's country of
origin, to 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. (Welf. & Inst. Code Sec. 361.5(e).)
AB 365 (Cristina Garcia)
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Existing law allows the court to permit parties to appear by
telephone in family law cases if the court determines that
telephonic appearance is appropriate, and allows parties in
civil cases to appear by telephone, as specified. (Cal. Rules
of Court 5.9, 3.670.)
This bill would require the court to allow a party to present
testimony and evidence, and participate in mandatory child
custody mediation by electronic means if the party's deportation
or detention by the United States Immigration and Customs
Enforcement will have a material effect on his or her ability,
or anticipated ability, to appear in person at a child custody
proceeding.
This bill would specify that "electronic means" includes, but is
not limited to, telephone, video teleconferencing, or other
electronic means that provide remote access to the hearing, to
the extent that this technology is reasonably available to the
court and protects the due process rights of all parties.
COMMENT
1.Stated need for the bill
According to the author:
Teleconferencing and other electronic means are permitted
during child custody proceedings when a party is in another
state or a party's military deployment impacts their ability
to appear in person. However it is not currently done across
the state for detained or deported parents. While some
counties provide these services, in others the detained or
deported parent does not have a viable way to be present at
court. This increases the chance that the parent will lose
custody of their child. What is missing is equal access across
the state to testimony by electronic means for parents who
cannot be physically present in the court due to being
detained or deported. AB 365 would require the courts to allow
any detained or deported parent to present testimony and
evidence by electronic means in contested child custody
hearings and in court-ordered child custody mediations, upon
request. Electronic means includes telephone, video
conferencing, or the internet, provided that their use is
consistent with the due process right of all parties.
AB 365 (Cristina Garcia)
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2.Would provide detained and deported parents with additional
options to participate in custody proceedings
When a parent cannot participate in a child custody proceeding
because he or she has been detained or deported, the court may
(1) postpone the proceeding, (2) hold the proceeding in the
parent's absence, or (3) allow the parent to participate via
telephone. To ensure that those parents have the ability to
participate, this bill would require courts to allow the
proceeding to take place by electronic means, such as telephone
or video conferencing. In order to ensure that courts are able
to comply with this requirement, this bill would only allow
participation by electronic means if the technology is
reasonably available to the court, and would require that the
electronic participation method protects the due process rights
of all parties. This is identical to an option available to
deployed military parents created by AB 2416 (Cook, Chapter 466,
Statutes of 2010).
In support, the Service Employees International Union SEIU
writes, "Testimony by electronic means is already available in
many states, as well as eleven counties in California. Further,
teleconferencing and other electronic means are permitted during
child custody proceedings when a party is in another state or a
party's military deployment impacts their ability to appear in
person. AB 365 merely extends equal access for parents who
cannot be physically present in court due to being detained or
deported. AB 365 would bridge the gap in current law,
preventing families from being split unnecessarily."
3.Consistent with policy to preserve parent-child relationships
This bill would allow parents who have been detained or deported
to participate in child custody proceedings through electronic
means. This is consistent with legislation enacted to ensure
that parents who are unable to be physically present in court
(e.g., deployed, incarcerated, and out-of-state parents) to
nonetheless meaningfully participate in child custody
proceedings. Without the ability to participate in these
proceedings, the chance that a parent will lose custody of his
or her child increases significantly because the court is unable
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to hear that parent's perspective.
In support, the Association of Family and Conciliation Courts
writes "existing law currently gives the court the authority to
allow parties to appear by phone or other electronic means where
warranted and feasible. This bill would require the court to
allow such electronic participation in dire situations involving
detention and possible deportation. We believe this is
appropriate and can assist these families in adequately moving
through the custody process."
Support : Association of Family & Conciliation Courts (AFCC);
California Communities United Institute; California Partnership
to End Domestic Violence; First Focus Campaign for Children;
National Association of Social Workers - California Chapter;
Service Employees International Union (SEIU)
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1064 (De Leon, Chapter 845, Statues of 2012), created uniform
statewide policies and practices that sought to eliminate family
reunification barriers in the child welfare system for immigrant
families.
AB 2416 (Cook, Chapter 466, Statutes of 2010) allowed for
electronic access to family law proceedings by deployed military
members who might not otherwise be able to participate in their
children's custody cases because of deployment.
SB 1082 (Morrow and Ducheny, Chapter 154, Statutes of 2005) See
Background.
Prior Vote :
AB 365 (Cristina Garcia)
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Assembly Floor (Ayes 73, Noes 1)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 1)
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