Amended in Senate April 13, 2015

Senate Bill No. 594

Introduced by Senator Wieckowski

February 27, 2015

An act to amend Sections 3111, 3118, begin delete and 3170 end delete begin insert 3170, and 3183 end insert of, and to add Section 3117.5 to, the Family Code, relating to child custody.

LEGISLATIVE COUNSEL’S DIGEST

SB 594, as amended, Wieckowski. Child custody.

Existing law requires the court to require an evaluation, investigation, or assessment in any contested proceeding involving child custody or visitation rights begin delete where end delete begin insert when end insert the court has appointed a child custody evaluator or has referred a case for a full or partial court-connected evaluation, investigation, or assessment, and the court determines that there is a serious allegation of child sexual abuse. Existing law establishes certain minimum requirements for the evaluation, investigation, or assessment. begin insert Existing law authorizes a mediator to submit a recommendation to the court as to the custody of, or visitation with, a child. A mediator acting in that capacity is called a child custody recommending counselor. end insert

This bill would require the Judicial Council to, not later than January 1, 2016, develop a form that every begin delete investigator or evaluator end delete begin insert investigator, evaluator, or child custody recommending counselor end insert conducting an investigation would be required to submit to the court. The bill would require the form to delineate each requirement and require that the begin delete investigator or evaluator end delete begin insert person conducting an investigation end insert provide documentation in, or attached to, the form, showing that each task has been completed as required. The bill would provide that on or after January 1, 2016, an investigation that is not documented on the Judicial Council form would not meet the minimum requirements for an investigation as required by the provisions described above. The bill would require, on or after January 1, 2016, that documentation showing compliance with those requirements and the results of the investigation be submitted to the court on the form developed by the Judicial Council.

Existing law also requires a court, if it appears on the face of a petition, application, or other pleading to modify or obtain a temporary or permanent custody or visitation order that custody, visitation, or both are contested, to set the contested issues for mediation. Existing law provides that domestic violence cases shall be handled in accordance with a separate written protocol approved by the Judicial Council.

This bill would require the Judicial Council to, not later than January 1, 2016, develop a form to be used to help implement the separate written protocol approved by the Judicial Council.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 3111 of the Family Code is amended to
read:

3111.  

(a) In any contested proceeding involving child custody
or visitation rights, the court may appoint a child custody evaluator
to conduct a child custody evaluation in cases begin delete where end delete begin insert when end insert the
court determines it is in the best interests of the child. The child
custody evaluation shall be conducted in accordance with the
standards adopted by the Judicial Council pursuant to Section
3117, and all other standards adopted by the Judicial Council
regarding child custody evaluations. If directed by the court, the
court-appointed child custody evaluator shall file a written
confidential report on his or her begin delete evaluation on the form developed
pursuant to Section 3117.5. end delete begin insert evaluation, which shall be submitted
on, or attached to, the completed form developed pursuant to
Section 3117.5. end insert At least 10 days before any hearing regarding
custody of the child, the report shall be filed with the clerk of the
court in which the custody hearing will be conducted and served
on the parties or their attorneys, and any other counsel appointed
for the child pursuant to Section 3150. The report may be
considered by the begin delete court. end delete begin insert court if, (1) it is submitted on, or attached
to, the completed Judicial Council form, and, (2) it documents
compliance with the minimum state-mandated standards applicable
to the scope of the evaluation end insert begin insert . end insert

(b) The report shall not be made available other than as provided
in subdivision (a) or Section 3025.5, or as described in Section
204 of the Welfare and Institutions Code or Section 1514.5 of the
Probate Code. Any information obtained from access to a juvenile
court case file, as defined in subdivision (e) of Section 827 of the
Welfare and Institutions Code, is confidential and shall only be
disseminated as provided by paragraph (4) of subdivision (a) of
Section 827 of the Welfare and Institutions Code.

(c) The report may be received in evidence on stipulation of all
interested parties and is competent evidence as to all matters
contained in the report.

(d) If the court determines that an unwarranted disclosure of a
written confidential report has been made, the court may impose
a monetary sanction against the disclosing party. The sanction
shall be in an amount sufficient to deter repetition of the conduct,
and may include reasonable attorney’s fees, costs incurred, or both,
unless the court finds that the disclosing party acted with substantial
justification or that other circumstances make the imposition of
the sanction unjust. The court shall not impose a sanction pursuant
to this subdivision that imposes an unreasonable financial burden
on the party against whom the sanction is imposed. This
subdivision shall become operative on January 1, 2010.

(e) The Judicial Council shall, by January 1, 2010, do begin insert both of end insert
the following:

(1) Adopt a form to be served with every child custody
evaluation report that informs the report recipient of the
confidentiality of the report and the potential consequences for the
unwarranted disclosure of the report.

(2) Adopt a rule of court to require that, when a court-ordered
child custody evaluation report is served on the parties, the form
specified in paragraph (1) shall be included with the report.

(f) For purposes of this section, a disclosure is unwarranted if
it is done either recklessly or maliciously, and is not in the best
interests of the child.

SEC. 2.  

Section 3117.5 is added to the Family Code, to read:

3117.5.  

(a) The Judicial Council shall, no later than January
1, 2016, develop a form to be used by every investigator or
evaluator conducting a child custody evaluation. The form shall
delineate each requirement begin delete required by Section 3118 end delete begin insert of, and
incorporate any standards established by, Sections 3117 and 3118.
The form shall also incorporate all other standards adopted under
this code regarding child custody evaluations, end insert and require that the
investigator or evaluator provide documentation in, or attached to,
the form showing that each task has been completed as required.
For purposes of this section, a child custody evaluation means an
investigation and analysis of the health, safety, welfare, and best
interest of a child with regard to disputed custody and visitation
issues conducted pursuant to begin delete Sections 3111 or end delete begin insert Section 3111, end insert 3118,
begin insert or 3183 of this code, end insert Section 730 of the Evidence Code, or Article
1 begin insert (commencing with Section 2032.010) end insert of Chapter 15 of Title 4
of Part 4 of the Code of Civil Procedure. begin insert The child custody
evaluation form shall be consistent with Sections 3011, 3020, and
3044. end insert

(b) Child custody evaluations filed with the court on and after
January 1, 2016, shall be submitted begin delete on end delete begin insert on, or attached to, end insert the report
form developed pursuant to subdivision (a). begin insert The evaluation report
may be considered by the court if, (1) it is submitted on, or attached
to, the completed Judicial Council form, and, (2) it documents
compliance with the minimum state-mandated standards applicable
to the scope of the evaluation end insert begin insert . end insert

SEC. 3.  

Section 3118 of the Family Code is amended to read:

3118.  

(a) In any contested proceeding involving child custody
or visitation rights, where the court has appointed a child custody
evaluator or has referred a case for a full or partial court-connected
evaluation, investigation, or assessment, and the court determines
that there is a serious allegation of child sexual abuse, the court
shall require an evaluation, investigation, or assessment pursuant
to this section. When the court has determined that there is a serious
allegation of child sexual abuse, any child custody evaluation,
investigation, or assessment conducted subsequent to that
determination shall be considered by the court only if the
evaluation, investigation, or assessment is conducted in accordance
with the minimum requirements set forth in this section in
determining custody or visitation rights, except as specified in
paragraph (1). For purposes of this section, a serious allegation of
child sexual abuse means an allegation of child sexual abuse, as
defined in Section 11165.1 of the Penal Code, that is based in
whole or in part on statements made by the child to law
enforcement, a child welfare services agency investigator, any
person required by statute to report suspected child abuse, or any
other court-appointed personnel, or that is supported by substantial
independent corroboration as provided for in subdivision (b) of
Section 3011. When an allegation of child abuse arises in any other
circumstances in any proceeding involving child custody or
visitation rights, the court may require an evaluator or investigator
to conduct an evaluation, investigation, or assessment pursuant to
this section. The order appointing a child custody evaluator or
investigator pursuant to this section shall provide that the evaluator
or investigator have access to all juvenile court records pertaining
to the child who is the subject of the evaluation, investigation, or
assessment. The order shall also provide that any juvenile court
records or information gained from those records remain
confidential and shall only be released as specified in Section 3111.

(1) This section does not apply to any emergency court-ordered
partial investigation that is conducted for the purpose of assisting
the court in determining what immediate temporary orders may
be necessary to protect and meet the immediate needs of a child.
This section does apply when the emergency is resolved and the
court is considering permanent child custody or visitation orders.

(2) This section does not prohibit a court from considering
evidence relevant to determining the safety and protection needs
of the child.

(3) Any evaluation, investigation, or assessment conducted
pursuant to this section shall be conducted by an evaluator or
investigator who meets the qualifications set forth in Section
3110.5.

(b) The evaluator or investigator shall, at a minimum, do all of
the following:

(1) Consult with the agency providing child welfare services
and law enforcement regarding the allegations of child sexual
abuse, and obtain recommendations from these professionals
regarding the child’s safety and the child’s need for protection.

(2) Review and summarize the child welfare services agency
file. No document contained in the child welfare services agency
file may be photocopied, but a summary of the information in the
file, including statements made by the children and the parents,
and the recommendations made or anticipated to be made by the
child welfare services agency to the juvenile court, may be recorded
by the evaluator or investigator, except for the identity of the
reporting party. The evaluator’s or investigator’s notes
summarizing the child welfare services agency information shall
be stored in a file separate from the evaluator’s or investigator’s
file and may only be released to either party under order of the
court.

(3) Obtain from a law enforcement investigator all available
information obtained from criminal background checks of the
parents and any suspected perpetrator that is not a parent, including
information regarding child abuse, domestic violence, or substance
abuse.

(4) Review the results of a multidisciplinary child interview
team (hereafter MDIT) interview if available, or if not, or if the
evaluator or investigator believes the MDIT interview is inadequate
for purposes of the evaluation, investigation, or assessment,
interview the child or request an MDIT interview, and shall
wherever possible avoid repeated interviews of the child.

(5) Request a forensic medical examination of the child from
the appropriate agency, or include in the report required by
paragraph (6) a written statement explaining why the examination
is not needed.

(6) File a confidential written report with the clerk of the court
in which the custody hearing will be conducted and which shall
be served on the parties or their attorneys at least 10 days prior to
the hearing. This report may not be made available other than as
provided in this subdivision. This report shall include, but is not
limited to, the following:

(A) Documentation of material interviews, including any MDIT
interview of the child or the evaluator or investigator, written
documentation of interviews with both parents by the evaluator or
investigator, and interviews with other witnesses who provided
relevant information.

(B) A summary of any law enforcement investigator’s
investigation, including information obtained from the criminal
background check of the parents and any suspected perpetrator
that is not a parent, including information regarding child abuse,
domestic violence, or substance abuse.

(C) Relevant background material, including, but not limited
to, a summary of a written report from any therapist treating the
child for suspected child sexual abuse, excluding any
communication subject to Section 1014 of the Evidence Code,
reports from other professionals, and the results of any forensic
medical examination and any other medical examination or
treatment that could help establish or disprove whether the child
has been the victim of sexual abuse.

(D) The written recommendations of the evaluator or
investigator regarding the therapeutic needs of the child and how
to ensure the safety of the child.

(E) A summary of the following information: whether the child
and his or her parents are or have been the subject of a child abuse
investigation and the disposition of that investigation; the name,
location, and telephone number of the children’s services worker;
the status of the investigation and the recommendations made or
anticipated to be made regarding the child’s safety; and any
dependency court orders or findings that might have a bearing on
the custody dispute.

(F) Any information regarding the presence of domestic violence
or substance abuse in the family that has been obtained from a
child protective agency in accordance with paragraphs (1) and (2),
a law enforcement agency, medical personnel or records, prior or
currently treating therapists, excluding any communication subject
to Section 1014 of the Evidence Code, or from interviews
conducted or reviewed for this evaluation, investigation, or
assessment.

(G) Which, if any, family members are known to have been
deemed eligible for assistance from the Victims of Crime Program
due to child abuse or domestic violence.

(H) Any other information the evaluator or investigator believes
would be helpful to the court in determining what is in the best
interests of the child.

(I) On and after January 1, 2016, documentation showing
compliance with all requirements of this section and the results of
the investigation shall be submitted to the court begin delete on the end delete begin insert on, or
attached to, the completed end insert form developed pursuant to Section
3117.5 by the Judicial Council.

(c) If the evaluator or investigator obtains information as part
of a family court mediation, that information shall be maintained
in the family court file, which is not subject to subpoena by either
party. If, however, the members of the family are the subject of
an ongoing child welfare services investigation, or the evaluator
or investigator has made a child welfare services referral, the
evaluator or investigator shall so inform the family law judicial
officer in writing and this information shall become part of the
family law file. This subdivision may not be construed to authorize
or require a mediator to disclose any information not otherwise
authorized or required by law to be disclosed.

(d) In accordance with subdivision (d) of Section 11167 of the
Penal Code, the evaluator or investigator may not disclose any
information regarding the identity of any person making a report
of suspected child abuse. Nothing in this section is intended to
limit any disclosure of information by any agency that is otherwise
required by law or court order.

(e) The evaluation, investigation, or assessment standards set
forth in this section represent minimum requirements of evaluation
and the court shall order further evaluation beyond these minimum
requirements when necessary to determine the safety needs of the
child.

(f) If the court orders an evaluation, investigation, or assessment
pursuant to this section, the court shall consider whether the best
interests of the child require that a temporary order be issued that
limits visitation with the parent against whom the allegations have
been made to situations in which a third person specified by the
court is present or whether visitation will be suspended or denied
in accordance with Section 3011.

(g) An evaluation, investigation, or assessment pursuant to this
section shall be suspended if a petition is filed to declare the child
a dependent child of the juvenile court pursuant to Section 300 of
the Welfare and Institutions Code, and all information gathered
by the evaluator or investigator shall be made available to the
juvenile court.

(h) This section may not be construed to authorize a court to
issue any orders in a proceeding pursuant to this division regarding
custody or visitation with respect to a minor child who is the
subject of a dependency hearing in juvenile court or to otherwise
supersede Section 302 of the Welfare and Institutions Code.

begin insert

(i) On and after January 1, 2016, documentation showing
compliance with all requirements of this section and the results
of the investigation shall be submitted to the court on, or attached
to, the completed form developed pursuant to Section 3117.5 by
the Judicial Council.

end insert

SEC. 4.  

Section 3170 of the Family Code is amended to read:

3170.  

(a) If it appears on the face of a petition, application, or
other pleading to obtain or modify a temporary or permanent
custody or visitation order that custody, visitation, or both are
contested, the court shall set the contested issues for mediation.

(b) (1) Domestic violence cases shall be handled by Family
Court Services in accordance with a separate written protocol
approved by the Judicial Council. The Judicial Council shall adopt
guidelines for services, other than services provided under this
chapter, that courts or counties may offer to parents who have been
unable to resolve their disputes. These services may include, but
are not limited to, parent education programs, booklets, video
recordings, or referrals to additional community resources.

(2) The Judicial Council shall, no later than January 1, 2016,
develop a form to be used to help implement the written protocol
for handling domestic violence cases.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 3183 of the end insert begin insert Family Code end insert begin insert is amended to read: end insert

3183.  

(a) Except as provided in Section 3188, the mediator
may, consistent with local court rules, submit a recommendation
to the court as to the custody of or visitation with the child, if the
mediator has first provided the parties and their attorneys, including
counsel for any minor children, with the recommendations in
writing in advance of the hearing. The court shall make an inquiry
at the hearing as to whether the parties and their attorneys have
received the recommendations in writing. If the mediator is
authorized to submit a recommendation to the court pursuant to
this subdivision, the mediation and recommendation process shall
be referred to as “child custody recommending counseling” and
the mediator shall be referred to as a “child custody recommending
counselor.” Mediators who make those recommendations are
considered mediators for purposes of Chapter 11 (commencing
with Section 3160), and shall be subject to all requirements for
mediators for all purposes under this code and the California Rules
of Court. On and after January 1, 2012, all court communications
and information regarding the child custody recommending
counseling process shall reflect the change in the name of the
process and the name of the providers.

begin insert

(b) A child custody recommending counselor who makes child
custody and visitation recommendations to the court is considered
a child custody evaluator for purposes of Chapter 11 (commencing
with Section 3160) and is considered a child custody evaluator
for purposes of Chapter 6 (commencing with Section 3110). A
child custody recommending counselor shall be subject to all
requirements for mediators and custody evaluators for all purposes
under this code and the California Rules of Court. Commencing
January 1, 2016, a child custody recommending counselor’s report
shall be submitted on, or attached to, the completed form developed
pursuant to Section 3117.5. The recommendation report may be
considered by the court if, (1) it is submitted on, or attached to,
the completed Judicial Council form, and, (2) it documents
compliance with the minimum state-mandated child custody
evaluation standards applicable to the scope of the evaluation.

end insert begin delete

(b)

end delete

begin insert (c) end insert  If the parties have not reached agreement as a result of the
mediation proceedings, the mediator may recommend to the court
that an investigation be conducted pursuant to Chapter 6
(commencing with Section 3110) or that other services be offered
to assist the parties to effect a resolution of the controversy before
a hearing on the issues.

begin delete

(c)

end delete

begin insert (d) end insert  In appropriate cases, the mediator may recommend that
restraining orders be issued, pending determination of the
controversy, to protect the well-being of the child involved in the
controversy.