BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 840 A
Assembly Member Kuehl B
As Introduced
Hearing Date: July 13, 1999 8
Family Code 4
GMO:cjt 0
SUBJECT
Child Custody: Presumption Against Domestic Violence
Perpetrator
DESCRIPTION
This bill would create a rebuttable presumption that an
award of sole or joint physical or legal custody of a child
to a person who has been found in a court proceeding to
have perpetrated domestic violence in the preceding 10
years would be detrimental to the best interest of the
child. The bill would further enumerate factors for the
court to consider in determining whether or not the
presumption has been overcome.
The bill would require the court, in cases where both
parents are perpetrators of domestic violence, to determine
who was the primary aggressor, and would allow the court to
award custody to the other parent consistent with the best
interests of the child.
BACKGROUND
Existing legislative findings and declarations, as enacted
by AB 200 (Kuehl) Ch. 849, Statutes 1997, state that:
(1) it is the public policy of this state to assure that
the health, safety and welfare of children shall be the
court's primary concern in determining the best interest of
children when making custody orders;
(more)
AB 840 (Kuehl)
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(2) the perpetration of child abuse or domestic violence in
a household where a child resides is detrimental to the
child;
(3) it is the public policy of this state to assure that
children have frequent and continuing contact with both
parents after separation or dissolution of marriage; and
(4) Where there is a conflict between public policies (1)
and (3) above, any court's order regarding custody or
visitation shall be made in a manner that ensures the
health, safety, and welfare of the child and the safety of
all family members. [Family Code Section 3020.]
CHANGES TO EXISTING LAW
Existing law requires the court, in determining the award
of custody of a minor child, to follow an order of
preference - to both parents jointly, or to either parent,
and then to others as specified. [Family Code Section
3040.] However, subdivision (b) states, explicitly, that
"this section establishes neither a preference nor a
presumption for or against joint legal custody, joint
physical custody, or sole custody, but allows the court and
the family the widest discretion to choose a parenting plan
that is in the best interest of the child." [Family Code
Section 3040(b)].
In determining what is in the best interest of the child
in a custody proceeding, existing law requires the court to
consider all of the following:
a) the health, safety and welfare of the child;
b) any history of abuse by one parent or any other person
seeking custody against (1) any child to whom he or she is
related by blood or with whom he or she has had a
caretaking relationship, (2) the other parent, or (3) a
parent, current spouse, or cohabitant of the person seeking
custody, or with whom the parent seeking custody has had a
dating or engagement relationship;
(c) the nature and amount of contact with both parents;
(d) the habitual or continual illegal use of controlled
substances/alcohol by either parent. [Family Code Section
3011.]
Existing law also requires the court to state its reasons
in writing or on the record if, despite allegations made of
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a history of domestic violence or of drug/alcohol abuse by
the parent seeking custody, the court makes an order of
sole or joint custody to that parent.
This bill would create a presumption, rebuttable upon proof
of several factors, that an award of sole or legal custody
of a child to a person who has perpetrated domestic
violence, as defined under existing law and found in a
court proceeding, within the preceding 10 years, is
detrimental to the best interest of the child.
This bill would require the court, in cases where both
parents have had a history of perpetrating domestic
violence, to consider which of the parents has been the
primary aggressor and allow the court to award custody to
the other parent based on the rebuttable presumption
described above, consistent with the best interest of the
child.
COMMENT
1. Need for the bill
According to the author, this bill is necessary to reduce
the likelihood that a perpetrator of domestic violence
will be awarded sole or joint custody of the child.
The language of AB 840 has been in two prior bills by the
same author
(AB 200 in 1997 and AB 800 in 1996). AB 800 failed
passage in this Committee. AB 200 was amended, after the
bill passed the Assembly and before it was heard in this
Committee, to remove the language that is now in AB 840.
Both bills were strongly opposed by the California Judges
Association and the Judicial Council, on the grounds that
the court's widest discretion is necessary to apply the
rules to such complex matters as intrafamily
relationships in as fair a manner as possible, to reach
the desired result of what, in totality, is in the best
interest of the child. The opponents contended in both
those bills, and in this bill, that diminution of
judicial discretion would further tie the court's hands
in such a way as to perhaps force decisions that would in
the long run not be in the best interest of the child.
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Ironically, the author's own statement acknowledges that
courts are properly exercising their discretion:
"Understanding the interpersonal dynamics of domestic
violence and interpreting the behavior of domestic
violence victims is exceedingly difficult. Those family
and juvenile court judges who have made a personal
commitment to familiarizing themselves with the extensive
scholarship available on the topic will most likely find
that they already run their courts in the manner called
for by the provisions of this bill ."[Emphasis added.]
The author further states that this bill is based on a
section of the Model Code on Domestic and Family Violence
which was drafted by the National Council of Juvenile and
Family Court Judges, with the input and guidance of a
wide group of judicial officers, experts on domestic
violence and an advisory committee made up of lawyers,
judges, legislative representatives, public officials,
and district attorneys. However, although some states
have made strong statements regarding evidence of
domestic violence as being contrary to the best interest
of the child, and a couple have enacted the presumption
advocated by this bill against the perpetrator of family
violence (Delaware and Louisiana), the rest that have
considered the Model Code have adopted language varying
from a presumption that the parents would not be able to
cooperate in the future (after evidence of family
violence) [Wisconsin] to a rebuttable presumption that it
would not be in the best interest of the child to grant
custody, guardianship or unsupervised visitation to an
abusive person if clear and convincing evidence shows
ongoing domestic abuse [Oklahoma]. Compared to the
language adopted by those states, however, the language
of AB 840 is much broader, covering both custody and
visitation, limiting the factors to be considered by the
court, and covering domestic violence that may have
ceased or had been perpetrated against persons far
removed from the family.
In support of AB 840, the author presents studies based
on cases from other states to show that "battering men
are more likely to fight for custody than nonviolent men,
and that batterers often use the legal system to pursue
new tactics of abuse," citing Pagelow, Justice for
Victims of Spouse Abuse in Divorce and Child Custody
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Cases, 8 Violence and Victims 69, 74 (1993), and Liss and
Stahly, Domestic Violence and Child Custody, Battering
and Family Therapy 175, 182 (Hansen & Harway eds. 1993.)
However, those studies do not address the fundamental
issue of whether judges are abusing their discretion or
making improper custody decisions.
If the gist of the problem is that men who are batterers
are using the system to pursue new ways of abuse, it
would seem more effective to use a more direct and narrow
statute specifically authorizing the court not to award
custody to the abusive parent whom it finds (a) a
documented history of and continuing domestic violence by
that parent against the other parent or the
child/children in the household, and (2) the abuser is or
would use the child custody proceeding to perpetrate
additional abuse, unless it is shown not to be in the
best interest of the child.
SHOULD A MORE NARROW STATUTE BE DRAFTED?
Recently enacted legislative declarations (AB 200, Kuehl,
1997) regarding the best interest of the child are
directed towards moving the courts, in making custody
determinations, to properly consider and to give heavier
weight to the existence of domestic violence in a
household where a child resides, as opposed to any other
factor, as being detrimental to the child. The law is
thus focused on a finding that it would be a detriment to
the health, safety and welfare of the child to reside in
a household where domestic violence exists - and that
this finding would be consistent with the best interest
of the child. This law became effective January 1, 1998.
SHOULD NOT THE COURTS BE GIVEN SUFFICIENT TIME TO
IMPLEMENT THE INTENT OF THESE LEGISLATIVE FINDINGS AND
DECLARATIONS BEFORE FURTHER LIMITING THEIR DISCRETION?
2. Legislative statement of public policy vs. rebuttable
presumptions
An existing statute already contains a specific
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declarative statement regarding the detriment to the best
interest of a child, created by perpetration of domestic
violence or abuse in that child's home. [Family Code
Section 3020(a).] As a statement of the state's public
policy, it has the force of law, and any court making a
determination of what is in the best interest of a child
is bound by such a statement. This legislative statement
of public policy was part of the author's bill that was
enacted (AB 200, 1997) after language proposing the
rebuttable presumption was deleted from that bill.
In examining the various factors to consider in
determining what is in the best interest of the child,
the court is required to consider any history of domestic
violence, and the court is cautioned to look for
independent corroboration of the abuse, through orders
issued or reports made by various social services
providers and law enforcement personnel. Even when
required to consider this history, the court is free,
under existing law, to draw its own conclusions, based on
the totality of the factors presented, and their effect
on the best interest of the child.
This bill would create a presumption that the award of
sole or joint custody of a minor child to a parent who
has perpetrated domestic violence within the preceding 10
years is detrimental to the best interest of the child.
By raising this factor to the level of a rebuttable
presumption, one report of domestic violence made against
a parent by a person who may have simply been dating the
parent 9 years and 11 months prior, would require the
accused parent to either disprove the report of domestic
violence by clear and convincing evidence, or overcome
the presumption of detriment by clear and convincing
evidence of all those factors identified in the bill. If
any of those factors is not satisfied, the court would be
required to award custody to the other parent. (See
Comment 3 for discussion of the factors that must be
rebutted.)
This heavy burden is best described by an opponent of the
bill (Leslie Ellen Shear) who has represented parents,
children, and has been a mediator and a Special Master
appointed by the court in custody disputes:
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"The language of the bill is so broad that it sweeps many
parents into the net who present no risk to their
children. The behavior of marital and unmarital partners
at the time of separation is often erratic, and not
predictive of future conduct. Particularly during an
on-again, off-again relationship, well-intended efforts
to invite reconciliation with a partner who said, "don't
call me" would be domestic violence under this act. Not
all such individuals are stalkers. A number of such
invitations to reconcile or participate in counseling,
although initially unwanted, are accepted and children
enjoy reunified families. Conduct must always be
assessed contextually. Presumptions prevent such
assessment.
"Under the proposed legislation, a father who sends an
unwanted letter or e-mail to his estranged partner is
presumed unfit for sole or joint custody of his children
(including children of other relationships) for the
following 10 years.
"A mother who slapped a boyfriend in the face ten years
earlier may be deprived of the custody of the children
from her subsequent marriage.
"A single episode of uncharacteristic,
separation-engendered conduct which causes no physical
harm and never recurs could deprive children of the
opportunity to reside with their primary psychological
parent.
"A 20-year old new mother who had a physical fight with
her sibling at age 10 would be presumed to be a danger to
her newborn infant, sending the child home from the
hospital with the father absent rebuttal evidence?
"The U.S. Supreme Court has recognized the right to rear
one's children as protected by the Constitution. Because
the definition of domestic violence in the statute
[Section 6320 of the Family Code - defining behavior
subject to being enjoined, including molesting,
attacking, harassing, as well as contacting, directly or
indirectly, by mail or otherwise, disturbing the peace of
the other party as well as other members of the
household?] is so over broad, and because the time period
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encompassed is so long, the presumption probably would be
found unconstitutional. The bill uses the term
"detriment" which is a term of art in custody law. A
finding of "detriment" can result in custody to a
non-parent. "Detriment" cannot be presumed. It must be
proven."
Hence, opponents assert, the rebuttable presumption that
this bill would create would affect the rights of parents
to such a degree that it must be looked at in the context
of a parent's constitutional right to have a relationship
with his or her child, or to the care, custody, and
companionship of his or her child. The U.S. Supreme
Court has held that the interest a parent has in the
continued care, custody and control of his or her minor
child is a "fundamental liberty interest" which is
"commanding" and "much more precious than any property
right." [Santosky v. Kramer (1982) 455 U.S. 745, 758-759.
See also, Stanley v. Illinois (1972) 405 U.S. 645, 651
and Lassiter v. Department of Social Services (1981) 452
U.S. 18, 27.] Thus, the court's fundamental focus in
determining custody of a child should be the parent's
relationship and actions with the child.
This bill would shift the court's focus from
considerations of the parent-child relationship to
focusing on the general nature and tendencies of the
parent and his or her relationships with others, and
speculation about the future actions of this parent
towards the child.
SHOULD A PARENT'S CONSTITUTIONAL RIGHT TO HAVE A
RELATIONSHIP WITH HIS OR HER CHILD BE SUBJECT TO AN
APPARENTLY BROAD PRESUMPTION?
3. Overcoming the presumption: would pro per litigants
understand how?
This bill provides a number of factors that must be
proven by the party against whom the presumption would
operate, to rebut the presumption of detriment to the
child if custody were to be awarded to that party. Proof
by clear and convincing evidence would be required to
overcome the presumption. Those factors are:
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1) whether the perpetrator of domestic violence has
demonstrated that awarding custody to him or her is in
the best interest of the child;
2) whether the perpetrator has successfully completed a
batterer's program, as defined;
3) whether the perpetrator has successfully completed a
program of alcohol abuse or drug abuse counseling and/or
treatment;
4) whether the perpetrator has successfully completed a
parenting class, if appropriate;
5) if the perpetrator is on parole, whether or not he or
she has complied with the terms and conditions of
probation or parole; and
6) whether the perpetrator has committed any further
acts of domestic violence.
The first factor would require a parent against whom the
presumption is being raised to present facts that would
prove that it is not detrimental to the best interest of
the child to be in the custody of that parent, and that
in fact it is in the best interest of the child to be in
the custody of that parent.
This may be a great issue for an attorney representing a
litigant to discover, organize and present material facts
to sway the court to the client's benefit, but in the
case of pro per litigants, the likelihood of prevailing,
or even making a somewhat compelling argument, would be
practically nil. "Pro per litigants, who make up the
majority of parents coming before the California family
courts, are ill-equipped to understand the operation of a
legal presumption. Few will have the expertise to offer
rebuttal evidence. To the extent that such parents are
ineffective in the courtroom, their children's best
interest are apt to get lost." (Letter from Leslie Ellen
Shear, 6/24/99.)
4. No research establishes protection to be provided by
presumption
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The Family Code already requires the court to consider
any history of abuse, and the health, safety, and welfare
of the child.
While the author cites research that appear to support
the notion that perpetrators of domestic violence end up
with custody of their children, there are others that
focus on patterns of domestic violence and make
recommendations regarding the use of such history of
domestic violence in custody and visitation
determinations.
For example, the State Office of Family Court Services
funded extensive research by Dr. Janet Johnston that
identifies different patterns of domestic violence,
describes the risks to children, and equips
decisionmakers to make differential recommendations for
custody tailored to the profile. Dr. Johnston's findings
and recommended guidelines for resolution of custody and
visitation disputes are incorporated in her book, In the
Name of the Child, Johnston & Roseby, Freepress, 1998.
Other books (Dr. D. Dutton, The Batterer: A Psychological
Profile, basic Books, NY 1995; Dr. Neil Jacobsen & Dr.
John Gottman, When Men Batter Women: New Insights Into
Ending Abusive Relationships, Simon & Schuster, 1998;
Holden et al., Children Exposed to Marital Violence:
Theory, Research and Applied Issues, American
Psychological Association, 1998] describe research in the
area of domestic violence, profiles of perpetrators,
differentiation of levels of domestic violence and make
different recommendations regarding the handling of these
issues in the context of child custody and visitation
determinations. None of these books recommend a
statutory presumption against an award of custody.
In short, there is no research available on the
protection that a statutory presumption such as this bill
would establish, would provide to children exposed to
domestic violence, but there is plenty of material for
judges and commissioners who make these decisions on a
day-to-day basis to familiarize themselves with and apply
in the best interest of the child.
5. Where both parents are perpetrators, court must decide
who is the primary aggressor for potential application of
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the presumption against him or her
This bill would require the court to determine the
primary aggressor of the two parents when both have been
perpetrators of domestic violence, and would allow the
court to apply the presumption against that person.
Once again, this type of inquiry would focus the court on
the behavior of the parents and their relationships to
each other and to others, rather than on the fundamental
issue of the parent-child relationship. It would draw
the court into an inquiry about incidents that took place
as long as 10 years earlier ("who did what to whom," "who
hit first," "who hit harder"), rather than focusing on
the present situation and whether conditions exist that
would affect the best interest of the child.
Opponents suggest that having to use the "primary
aggressor" standard targets "the larger and stronger of
two battling parties, not one who struck the first blow,
pushed the most buttons, or was involved in the most
long-standing series of violent relationships?..While the
National Family Violence surveys show women hit men as
often as men hit women, 85 percent of those arrested for
domestic violence in California are men, and 95 percent
of those prosecuted." (Coalition for Family Support
letter, 5/4/99.)
Moreover, the formula seems overly rigid. A spouse who
slapped the other would be denied custody in the absence
of any physical reaction in return (a counter-slap), but
in a household of dueling physical combatants, why would
one necessarily be better than the other? Or what about
a loving and caring father who is the primary nurturer of
the kids, finds out the mother has been abusing alcohol
and drugs, confronts her and slaps her in the heat of
argument, then gets a protective order issued by a police
officer against him? Should such a father have to be
saddled with the burden of overcoming a statutory
presumption against his being granted custody of the
children? Even though the application of the presumption
in this instance would be discretionary, the question is
whether the court's time is best used by mandating this
line of inquiry and focus.
6. California Judges Association and Judicial Council
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opposition
In their opposition letter, the California Judges
Association states:
"Custody, visitation, and related issues of law and fact
interact in complex and unique ways in every case coming
before the court. Presumptions, rebuttable or otherwise,
do not assist courts in protecting the best interests of
children and crafting just orders. Rather, they impede
the court's ability to accomplish these goals.
California's courts do not abuse the limited discretion
left to them in this area, and further restrictions or
other alterations to that discretion, as called for by AB
840, would be counterproductive."
The California Judicial Council argues that the
imposition of a rebuttable presumption for each case in
which an allegation of domestic violence is brought is
overly broad and unworkable. "Child custody
decisionmaking, particularly in highly contested cases,
is very complicated, and often involves numerous issues
about each parent that the court must consider. The
Judicial Council believes that the current law does a
good job of highlighting the issue of domestic violence,
and that a presumption is not necessary."
A third opposition letter, received from the Coalition
for Parent Support, compliments the author on the passage
of AB 200 and indicates that it is "working very
well?..There is no evidence to suggest that the law is
responsible for inappropriate custody decisions. Making
judges conform their decisions to the law remains an
issue, but one that is best dealt with through research
and training rather than legislation."
7. Technical amendment
The bill would define a person who has "perpetrated
domestic violence" as one who was found by a court to
have committed an act of domestic violence as defined in
Family Code Section 6211. This is an important
qualification, otherwise, the presumption could arise
upon a mere unsubstantiated allegation made up to 10
years after the fact. As drafted, however, the
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definition appears in subdivision (c) - the primary
aggressor provision.
To ensure that the court finding of domestic violence
applies to the whole bill, the definition should be
removed from subdivision (c) and placed into a new
subdivision (d).
Support: AAUW California; Commission on the Status of
Women; numerous letters from 1997 and 1996, written
by those in support of AB 800 or AB 200.
Opposition: California Judges Association; California
Judicial Council; Coalition
for Parent Support; Leslie Ellen Shear, Attorney
at Law; Commissioner Bobby Vincent; Family Law
Section of the State Bar; David Kuroda, LCSW,
former Division Chief of the Mediation and
Conciliation Service, Family Court Services of
the Los Angeles Superior Court
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: AB 200 (Kuehl), Ch. 849 Stats 1997) and
AB 800 (Kuehl, 1996) failed passage in this committee.
Prior Vote: Asm. Jud. (Ayes 14. Noes 0.);Asm. Flr. (Ayes
61. Noes 8.)
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