BILL NUMBER: AB 1307	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 11, 2005

INTRODUCED BY   Assembly Member  Berg  
  Dymally 
    (Principal   coauthor: Senator   Ashburn
 )

                        FEBRUARY 22, 2005

    An act to amend Section 9250 of the Welfare and
Institutions Code, relating to long-term care.   An act
to amend Sections 3011, 3020, 3027.1, 3040, and 3118 of, and to
repeal Sections 3080 and 3082 of, the Family Code, relating to child
custody. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1307, as amended,  Berg   Dymally  .
 Long-term care   Child custody  . 
   (1) Existing law requires the court to consider specified factors,
including, but not limited to, any history of abuse, in making a
determination of the best interest of a child for purposes of
determining child custody.  
   This bill would additionally require the court to order that
parental responsibility for a minor child be shared equally by both
parents, and to award equal joint custody to both parents, except
under specified conditions.  
   (2) Existing law finds and declares that it is the policy of this
state to assure that the health, safety, and welfare of children are
the court's primary concern in determining the best interest of
children when making any orders regarding the physical or legal
custody or visitation of children.  
   This bill would state the further findings of the Legislature that
in the absence of evidence to the contrary, the best interest of the
child means equal contact with both parents as provided in an order
for joint custody, unless a party or both parties request otherwise.
 
   (3) Existing law authorizes the court to impose reasonable money
sanctions, including reasonable attorney's fees incurred in
recovering the sanctions, against a person who knowingly makes a
false accusation of child abuse or neglect during a child custody
proceeding, under certain conditions.  
   This bill would require the court to impose these money sanctions,
and to consider a finding of an intentional false accusation made by
a party to be a change of circumstances of an existing custody
order.  
   (4) Existing law requires the court to consider specified custody
arrangements, in order of preference, according to the best interest
of the child.  
   This bill would revise and recast this provision to specify that
custody should be granted first to both parents jointly and equally
and, second, to either parent.  
   (5) Existing law establishes a presumption that joint custody is
in the best interest of a minor child where the parents have agreed
to joint custody or so agree in open court at a custody hearing, as
specified. The court is required, when a request for joint custody is
granted or denied, upon the request of any party, to state in its
decision the reasons for granting or denying the request.  
   This bill would delete these provisions.  
   (6) This bill would make related, other conforming changes.
 
   Existing law, the Mello-Granlund Older Californians Act,
prescribes programs and services for the benefit of the state's older
population and other populations served by the programs administered
by the California Department of Aging. The act includes provisions
calling for improved coordination and delivery of long-term care
services.  
   This bill would make technical, nonsubstantive changes to the
provisions of the act relating to the coordination and delivery of
long-term care services. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  
  SECTION 1.  Section 9250 of the  Welfare and Institutions Code  is
amended to read: 
  SECTION 1.    The Legislature finds and declares all of the
following:  
   (a) The United States Supreme Court has continually recognized
that natural parents have a fundamental liberty interest in the care,
custody, and management of their children.  
   (b) Numerous public and private studies show that children
experience less social, educational, psychological, and legal
problems when they are raised with the equal involvement of both
parents despite separation or divorce.  
   (c) The current law causes unnecessary litigation, conflict among
parents, and the excessive use of limited court resources by
requiring courts to make a finding of the best interest of the child
in every case where there are two loving, concerned parents
interested in having an equal say in the raising of their child.
 
   (d) Trial courts can best protect the fundamental liberty interest
of parents in raising their children by awarding joint custody to
both interested parents in the absence of clear and convincing
evidence that such an award would not be in the best interest of the
child. 
  SEC. 2.   Section 3011 of the   Family Code  
is amended to read: 
   3011.    (a) In any proceeding described in Section 3021, the
court shall do both of the following:  
   (1) Order that parental responsibility for a minor child be shared
equally by both parents.  
   (2) Award equal joint custody to both parents unless both parties
jointly request otherwise or a party alleges and proves by clear and
convincing evidence that joint custody would not be in the best
interest of the child. A statement that joint physical custody is not
in the best interest of the child is not sufficient to satisfy the
requirements of this section. If the court does not order an equal
joint custody award consistent with both parties' fundamental liberty
interest in raising their children, it shall make a finding that
specifically identifies those facts it relied upon to determine that
an equal joint custody award would not be in the best interest of the
child. 
    (b)    In making a determination of the best
interest of the child  in a proceeding described in Section
3021  , the court shall, among any other factors it finds
relevant, consider all of the following:  
   (a) 
    (1)    The health, safety, and welfare of the
child.  
   (b) 
    (2)     (A)    Any history of
abuse by one parent or any other person seeking custody against any
of the following:  
   (1) 
    (   i   )    Any child to
whom he or she is related by blood or affinity or with whom he or she
has had a caretaking relationship, no matter how temporary.

   (2) 
    (   ii   )    The other
parent.  
   (3) 
    (   iii   )    A parent,
current spouse, or cohabitant, of the parent or person seeking
custody, or a person with whom the parent or person seeking custody
has a dating or engagement relationship.
    (B)    As a prerequisite to the consideration
of allegations of abuse, the court may require substantial
independent corroboration, including, but not limited to, written
reports by law enforcement agencies, child protective services or
other social welfare agencies, courts, medical facilities, or other
public agencies or private nonprofit organizations providing services
to victims of sexual assault or domestic violence. As used in this
subdivision, "abuse against a child" means "child abuse" as defined
in Section 11165.6 of the Penal Code  ,  and abuse against
any of the other persons described in  paragraph (2) or (3)
  clause (ii) or (iii) of subparagraph (A)  means
"abuse" as defined in Section 6203  of this code  .

   (c) 
    (3)    The nature and amount of contact with
both parents, except as provided in Section 3046.  
   (d) 
    (4)    The habitual or continual illegal use of
controlled substances or habitual or continual abuse of alcohol by
either parent. Before considering these allegations, the court may
first require independent corroboration, including, but not limited
to, written reports from law enforcement agencies, courts, probation
departments, social welfare agencies, medical facilities,
rehabilitation facilities, or other public agencies or nonprofit
organizations providing drug and alcohol abuse services. As used in
this  subdivision   paragraph  ,
"controlled substances" has the same meaning as defined in the
California Uniform Controlled Substances Act, Division 10 (commencing
with Section 11000) of the Health and Safety Code.  
   (c)  
   (5) Any additional information or evidence the court finds
relevant. 
    (c)    (1) Where allegations about a parent
pursuant to  paragraph (2) or (4) of  subdivision (b)
 or (d)  have been brought to the attention of the
court in the current proceeding, and the court makes an order for
sole or joint custody to that parent, the court shall state its
reasons in writing or on the record. In these circumstances, the
court shall ensure that any order regarding custody or visitation is
specific as to time, day, place, and manner of transfer of the child
as set forth in subdivision (b) of Section 6323.
   (2) The provisions of this subdivision shall not apply if the
parties stipulate in writing or on the record regarding custody or
visitation.
  SEC. 3.  Section 3020 of the   Family Code  
is amended to read: 
   3020.  (a) The Legislature finds and declares that 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 any orders
regarding the physical or legal custody or visitation of children.
 The Legislature further finds that in the absence of evidence to
the contrary, the best interest of the child means equal contact
with both parents as provided in an order for joint custody unless a
party or both parties request otherwise.  The Legislature
further finds and declares that the perpetration of child abuse or
domestic violence in a household where a child resides is detrimental
to the child.
   (b) The Legislature finds and declares that it is the public
policy of this state to assure that children have frequent and
continuing contact with both parents after the parents have separated
or dissolved their marriage, or ended their relationship, and to
encourage parents to share  equally  the rights and
responsibilities of child rearing  in order to effect this
policy  , except where the contact would not be in the best
interest of the child, as provided in Section 3011.  
   (c) Where the policies set forth in subdivisions (a) and (b) of
this section are in conflict, any court's order regarding physical or
legal 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.  
   (c) The Legislature finds and declares that in order to effect the
policies set forth in subdivisions (a) and (b) efficiently, minimize
unnecessary conflict between the parties, and reduce any undue
interference by government in the fundamental right of parents to
raise their children, courts shall order joint custody equally to
both parents as provided in Section 3011, unless the court finds it
would not be in the best interest of the child. Consistent with this
policy, any court order regarding visitation shall be made in a
manner that ensures the health, safety, and welfare of all family
members. 
  SEC. 4.   Section 3027.1 of the   Family Code 
 is amended to read: 
   3027.1.  (a) If a court determines, based on the investigation
described in Section 3027 or other evidence presented to it, that an
accusation of child abuse or neglect made during a child custody
proceeding is false and the person making the accusation knew it to
be false at the time the accusation was made, the court  may
  shall  impose reasonable money sanctions, not to
exceed all costs incurred by the party accused as a direct result of
defending the accusation, and reasonable attorney's fees incurred in
recovering the sanctions, against the person making the accusation.
 The court also shall consider a finding of an intentional false
accusation made by a party to be a change of circumstances of an
existing custody order.  For the purposes of this section,
"person" includes a witness, a party, or a party's attorney.
   (b) On motion by any person requesting sanctions under this
section, the court shall issue its order to show cause why the
requested sanctions should not be imposed. The order to show cause
shall be served on the person against whom the sanctions are sought
and a hearing thereon shall be scheduled by the court to be conducted
at least 15 days after the order is served.
   (c) The remedy provided by this section is in addition to any
other remedy provided by law.
  SEC. 5.   Section 3040 of the   Family Code  
is amended to read: 
   3040.  (a) Custody should be granted in the following order of
preference  according to the best interest of the child
 as provided in Sections 3011 and 3020:
   (1) To both parents jointly  pursuant to Chapter 4
(commencing with Section 3080) or to either parent   and
equally  .
    (2)     To either parent.  In making
an order granting custody to either parent, the court shall consider,
among other factors, which parent is more likely to allow the child
frequent and continuing contact with the noncustodial parent,
consistent with Section 3011 and 3020, and shall not prefer a parent
as custodian because of that parent's sex. The court, in its
discretion, may require the parents to submit to the court a plan for
the implementation of the custody order.  
   (2) 
    (3)    If to neither parent, to the person or
persons in whose home the child has been living in a wholesome and
stable environment.  
   (3) 
    (4)    To any other person or persons deemed by
the court to be suitable and able to provide adequate and proper
care and guidance for the child.
   (b)  This section establishes neither a preference nor a
presumption for or against joint legal custody, joint physical
custody, or sole custody, but   Subject to the
provisions for equal joint custody provided in Section 3011, this
section  allows the court and the family the widest discretion
to choose a parenting plan that is in the best interest of the child.

  SEC. 6.   Section 3080 of the   Family Code  
is repealed.  
   3080.  There is a presumption, affecting the burden of proof, that
joint custody is in the best interest of a minor child, subject to
Section 3011, where the parents have agreed to joint custody or so
agree in open court at a hearing for the purpose of determining the
custody of the minor child. 
  SEC. 7.   Section 3082 of the   Family Code  
is repealed.  
   3082.  When a request for joint custody is granted or denied, the
court, upon the request of any party, shall state in its decision the
reasons for granting or denying the request. A statement that joint
physical custody is, or is not, in the best interest of the child is
not sufficient to satisfy the requirements of this section. 

  SEC. 8.   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  subparagraph (B) of  
paragraph (2) of  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.
   (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.


   9250.  (a) The Legislature finds and declares all of the
following:
   (1) Our delivery of long-term care needs to be vastly improved in
order to coordinate services that are appropriate to each individual'
s functional needs and financial situation. Care services should be
holistic and address the needs of the entire person, including the
person's mental, physical, social, and emotional needs.
   (2) The coming age wave will bankrupt California if we maintain
the current uncoordinated system of long-term care.
   (3) The new generation of aging Californians will desire, expect,
and demand a much more responsive, coherent, and human-dignified
system of care services.
   (4) Multiple funding streams and varied eligibility criteria have
created "silos" of services, making it difficult for consumers to
move with ease from one service or program to another.
   (5) Separate funding streams and uncoordinated services for older
adults and adults with disabilities have created barriers in services
for these populations. Adults with disabilities often receive
long-term care services designed to support and protect the
institutionalized older population. Instead, services need to be
individualized to empower older adults and persons with disabilities
to live in the community.
   (6) Historically, two delivery systems, referred to as the medical
model and the social model of care, have evolved with little or no
coordination between the two.
   (7) A high percentage of consumers enter the long-term care system
after a hospitalization. Assistance and support following
hospitalization would reduce the number of nursing home placements.
   (8) The Legislature affirms the notion that individuals should be
able to receive care in the least restrictive environment.
   (9) Skilled nursing facilities account for 5 percent of the
long-term care caseload and 52 percent of the long-term care
expenditures. Home and community-based services account for 78
percent of the long-term care caseload, and 13 percent of long-term
care expenditures. It is therefore more cost-effective to connect
consumers with services in the community than to continue to place
individuals in institutions.
   (10) A number of counties and programs have developed and
implemented innovative Internet-based information systems. Some of
these systems are designed to help consumers access information
regarding long-term care services, and others are designed to help
providers track client information.
   (11) The California Health and Human Services Agency is developing
the "CalCareNet" Web site, which is designed to help the consumer
find state-licensed providers of health services, social services,
mental health services, alcohol and other drug services, and
disability services, and also to find state-licensed care facilities.

   (b) It the intent of the Legislature to enact legislation to do
all of the following:
   (1) Ensure that each consumer is able to connect with the
appropriate services necessary to meet individual needs.
   (2) Better coordinate long-term care delivery, recognizing the
elements that are already in place, and expand the availability of
long-term care.
   (3) Deliver long-term care services in the most cost-effective
manner.
   (4) Access multiple public and private funding streams, without
supplanting existing funding for programs and services.