BILL ANALYSIS
AB 1307
Page 1
Date of Hearing: May 3, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1307 (Dymally) - As Amended: April 27, 2005
SUBJECT : PRESUMPTION OF JOINT CUSTODY: ELIMINATION OF "BEST
INTEREST OF THE CHILD" PRIORITY
KEY ISSUES :
1)WOULD A REQUIREMENT OF A STRONG STATUTORY PREFERENCE FOR JOINT
CUSTODY BE IN THE BEST INTERESTS OF CHILDREN? OR, WOULD THE
BEST INTERESTS OF CHILDREN CONTINUE TO BE BEST SERVED BY
PRESERVING THE COURT'S SOLE FOCUS ON THE BEST INTEREST OF THE
CHILD?
2)WOULD A STATUTORY PREFERENCE FOR PRECISELY EQUAL JOINT CUSTODY
(50-50) -- BE A "ONE SIZE FITS ALL" PUBLIC POLICY THAT COULD
LEAD TO JOINT CUSTODY BEING ORDERED IN CASES WHERE JOINT
CUSTODY WOULD CLEARLY NOT BE IN A CHILD'S BEST INTERESTS?
3)WOULD THIS BILL, AS THE PROPONENTS SUGGEST, REDUCE PARENTAL
CONFLICT, OR WOULD IT INADVERTENTLY HARM MANY POST-SEPARATION
CHILDREN BY POTENTIALLY EXPOSING THEM TO INCREASED LEVELS OF
PARENTAL CONFLICT AS UNCOOPERATIVE PARENTS FAIL AT UNWISE
JOINT CUSTODY ARRANGEMENTS?
4)WOULD THIS BILL ESPECIALLY HARM POST-SEPARATION CHILDREN OF
PARENTS IN ABUSIVE RELATIONSHIPS?
SYNOPSIS
This bill, sponsored by the California Shared Parenting
Alliance, would establish equal joint custody as the presumed
rule in all custody cases, except where a parent opposing such
an order can establish by clear and convincing evidence that
such shared parenting would not be in the best interest of the
child. This bill would also state the intent of the Legislature
that joint custody best serves the parents' fundamental liberty
interest in the care of their children. Supporters of the bill
argue that the bill will protect critical bonds children share
with their parents by making it clear that parents come before
the family law court with equal rights to and responsibilities
for their children, and that this, in turn, will reduce the
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conflict between parents and reduce harm to children from
parental separation.
Opponents of the bill, including the Judicial Council, the
judges, the Family Law Section of the State Bar and numerous
women's and domestic violence organizations, argue that the bill
will tragically increase, rather than decrease harm, to children
by establishing a standard for custody that puts the parents'
interests ahead of the best interests of their children. They
argue that the current standard gives courts the widest possible
discretion to make custody decisions focused solely on what is
in the best interest of children. They contend this bill could
expose children to more post-separation conflict, which studies
have shown have significant negative impacts on children.
Moreover, opponents worry that the high standard to rebut the
presumption will make it more likely that batterers will be
awarded joint custody, thus further endangering both the victim
and the child by increasing the likelihood that the child will
witness further violence, become a victim of abuse or be a pawn
in the batterer's attempts to harass the abused parent.
SUMMARY : Creates a strong presumption in favor of equal joint
physical custody. Specifically, this bill :
1)Makes legislative findings that (1) natural parents have a
fundamental liberty interest in their children; (2) studies
show that children experience less problems if they are raised
equally by both parents; (3) current law causes unnecessary
litigation and conflict between parents; and (4) trial courts
can best protect the fundamental liberty interest of parents
in raising their children by awarding joint custody to both
parents.
2)Requires a court to provide, to the greatest degree practical,
substantially equal access to children to both parents unless
the objecting parent proves by clear and convincing evidence
that joint custody would not be in the child's best interest.
Requires that if the court does not award substantially equal
access to the child to both parents, the court must include in
the record the specific findings of fact it relied upon in
making its custody award.
3)States the legislative finding that, absent evidence to the
contrary, the best interest of the child means substantially
equal contact with both parents, unless a party or both
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parties request otherwise.
4)Requires the court to consider a finding of an intentional
false accusation of child abuse or neglect made by a party to
be a change of circumstances of an existing custody order.
EXISTING LAW :
1)Focuses all custody orders on the best interests of the child.
Requires a court to grant custody according to the best
interest of the child to both parents jointly or to either
parent, and states that there is neither a preference nor a
presumption for or against joint custody or sole custody, but
allows courts and families the widest discretion to choose a
parenting plan that is in the child's best interest. The
court may not consider a parent as custodian because of that
parent's sex. In making a custody order, the court should
consider, among other things, which parent is most likely to
allow the other parent frequent and continuing contact with
the child. (Family Code Section 3040.)
2)States the policies of the Legislature to assure (1) the
health, safety and welfare of the child; and (2) that children
have frequent and continuing contacts with both parents,
consistent with the best interest of the child. When the
policy of frequent and continuing contact conflicts with the
policy to assure the health, safety and welfare of the child,
custody decisions must be made in a manner to ensure the
health, safety and welfare of the child and the safety of all
family members. (Family Code Section 3020.)
3)Creates a presumption that joint custody is in a child's best
interest when both parents agree to joint custody. (Family
Code Section 3080.)
4)Allows the court to order joint custody when it is in the
child's best interest. If the court grants or denies a
request for joint custody and a party so requests, the court
must state its reasons in the decision. (Family Code Sections
3081-82.)
5)Establishes a rebuttable presumption against joint custody or
sole custody to a party who has perpetrated domestic violence
against the other party seeking custody or against the child
or the child's siblings. The presumption can be rebutted by a
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preponderance of the evidence. (Family Code Section 3044.)
6)Requires a court to impose reasonable money sanctions on a
party who knowingly makes a false allegation of abuse during a
custody proceeding. Provides that no court may deny or limit
custody or visitation to a parent solely because that parent
(a) lawfully reported sexual abuse of the child; (b) otherwise
acted lawfully, based on a reasonable belief, to determine if
the child was a victim of sexual abuse; or (c) sought mental
health treatment for the child for suspected sexual abuse.
(Family Code Sections 3027.1, 3027.5(a).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill would mandate substantially equal access
to children by both parents as the rule in all cases, except
where a parent opposing such an order can establish by clear and
convincing evidence that such shared parenting would not be in
the best interest of the child. While "equal access" is not
defined in California family law, it is assumed that what is
meant is 50-50 joint physical custody. This bill would also
state the intent of the Legislature that parents' fundamental
liberty interest in the care of their children can best be
protected by awarding joint custody to parents absent clear and
convincing evidence to the contrary. The bill would also
require courts to consider an intentional false accusation made
by one party to be a change of circumstances of a custody order.
According to the author, this bill is necessary because:
Society pays an enormous price for the detrimental
impact studies have confirmed from the absence of a
father in the lives of children. US Census reports
indicate less than 25% of all custody orders are for
joint custody. A growing number of states have
recognized the damage caused by a court system focused
on conflict and winning rather than parenting. At
least 11 other states and the District of Columbia
have statutes similar to AB 1307 that recognizes the
equal rights of both parents to raise their children
as the starting point of any custody order. They,
like AB 1307 still give the courts complete discretion
to fashion a final order in the child's best interest.
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Support for this concept is growing in other states.
Last year, in the clearest example of popular support
for a presumption of equal joint custody,
Massachusetts voters approved an advisory vote for a
presumption of joint custody in 37 different
legislative districts by a cumulative vote of an
unheard of rate of 84.5%. AB 1307 will reduce the
conflict and father alienation caused by a custody law
that emphasizes conflict first rather than parenting.
Recognizing the rights of all parents and the best
interest of the child are not conflicting values but a
policy that benefits all, especially the children.
The sponsor of the bill, the California Shared Parenting
Alliance (CSPA), argues in support of the bill that:
Research clearly establishes that shared custody
creates better outcomes for children emotionally,
educationally, and financially. CSPA believes that in
most cases children's interest are best served when
their rights to have a relationship with both parents
is protected.
Numerous individual proponents argue that the bill will "protect
the critical bonds children share with their parents by making
it clear that parents come before the family law court with
equal rights to and responsibilities for their children."
Stated another way: "Child custody law should apply one of the
very simple propositions in mathematics; two is more than one.
Two parents can do more than one. A single parent may do all
that he or she can, but there's no doubt that the active
involvement of a second parent adds a lot and make it better for
the child." (Testimony of Ron Henry, provided by the author's
office.)
Current law on joint custody . California originally established
a preference for joint custody in 1979, but based on
difficulties with that preference, the Legislature removed it in
1984 in favor of the best interest of the child standard. The
current statute, which provides courts with the widest possible
discretion to choose a custody arrangement in the best interest
of the child and makes clear there is no presumption either for
or against joint custody, was established in 1988. At the time
that bill, SB 1306, was passed, its sponsor, the Senate Task
Force on Family Equity, asserted that the body of knowledge on
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custody was not sufficiently developed to support the
preferential awarding of joint custody or any other particular
custody arrangement. Research in this area still seems to be
far from complete. (See discussion below concerning the
outcomes of custody arrangements on children.)
Joint custody throughout the United States . Proponents of the
bill argue that many other states have a presumption in favor of
joint custody, including Massachusetts where a non-binding
resolution in favor of equal parenting, presented to
approximately one-quarter of the state's electorate, recently
passed. According to research by the National Council of State
Legislatures, as of September 2003, 11 states have a preference
or presumption in favor of joint custody. These states include
Idaho, Louisiana and Texas. Twelve other states, including
California, have a preference for joint custody if the parents
agree. Twenty-seven states have no preference.
Will this bill reduce or increase possible negative outcomes for
children? In support of the bill, its proponents provide
references to a plethora of studies citing numerous negative
outcomes for children from single parent families or children
who have had little or no involvement with their fathers,
including psychological and general health problems, lower
academic achievement, antisocial behaviors and difficulties with
sexual behavior. ( See, e.g., Zill and Schoenborn, National
Center for Health Statistics (1990); Davidson, Life Without
Father: America's Greatest Social Catastrophe , Policy Review
(1990); Gomes-Schwartz, et al. Child Sexual Abuse Victims and
Their Treatment (1988).)
However, as stated in the one analytic report actually provided
by the proponents on the effect on children of different custody
arrangements, many of the studies reviewed contain "inadequate
reporting of statistical results," larger sample sizes are
warranted for future research and more research is necessary to
assess the relative benefits over time of joint versus sole
custody. (Robert Bauserman, Child Adjustment in Joint-Custody
Versus Sole-Custody Arrangements: A Meta-Analytic Review , 16
Journal of Family Psychology 1, 91, 99 (2002).) In addition,
the report states "It is important to recognize that the
findings reported here do not demonstrate a causal relationship
between joint custody and better child adjustment." ( Id. )
Based on the data available, the Bauserman article concluded
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that "courts should not discourage parents from attempting joint
custody." ( Id .) Importantly for the consideration of this
bill, California law does not discourage parents from seeking a
joint custody arrangement. In fact, as discussed above,
California has a presumption in favor of joint custody when both
parents agree. However, AB 1307's presumption for 50-50 custody
would not apply only when both parents agree. Rather, it would
apply in all cases, subject to a very high rebuttal threshold;
and the current scientific literature provided by the proponents
of the bill does not appear to support such a presumption.
Proponents of this bill point to statistics from the Census
Bureau that indicate a higher percentage of fathers with joint
custody pay required child support (90.2%) than either fathers
who have only visitation privileges (79.1%) or those with
neither visitation nor joint custody (44.5%), and they argue
that the joint custody presumption will increase child support
payments to children. However, it is not clear from these
statistics whether fathers who have joint custody are more
likely to comply with child support orders, or whether fathers
who comply with support orders are more likely to be granted
joint custody. At best, this bill's effect on child support and
child poverty is uncertain.
Will this bill, as the author suggests, reduce conflict between
the parties or will it in fact increase conflict between the
parties? Proponents of the bill argue that this bill will
reduce conflict between parents and thus help children. They
argue that the bill, by creating a presumption for joint
custody, will reduce custody battles and thus reduce conflict
between the parents.
Most if not all child psychologists and developmental experts
agree that a high degree of conflict between parents generally
harms children. In Divided Families (1991), Frank F.
Furstenberg, Jr. and Andrew J. Cherlin write:
Children are harmed by intense conflict, whether or
not their parents live together. Indeed, children who
live in intact families with persistently high levels
of conflict are the most distressed of all. In the
initial period following the breakup, continuing
conflict is very likely. . . . The exposure to
conflict may set a bad example that leads them to act
aggressively or destructively later on. Their parents
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may use them as pawns or as go-betweens in the often
angry negotiations surrounding a divorce. Public
intervention should attempt to minimize children's
exposure to conflict. (Emphasis added.)
Studies have shown that the level of conflict that children
experience may be even more damaging for them than parental
separation. According to the Center for Law and Social Policy:
"? high conflict in intact homes has been found to
produce effects that are similar to and as strong as
those associated with marital disruption. Indeed,
over time, children in intact but persistently high
conflict homes show more deleterious effects than do
children who have experienced divorce but go on to
live in a relatively conflict-free post-divorce
situation. (Hilda Rodriguez and C. Arnold, Children
and Divorce: A Snapshot (1998).) (emphasis added.)
In a 1989 study, Dr. Janet Johnston, associated with the Center
for the Family in Transition, concluded in a custody study that:
[F]requent access to both parents when there is
unremitting conflict between the parents is linked to
more troubled emotional problems in both boys and
girls. (Johnston, et al., Ongoing Postdivorce
Conflict: Effects on Children of Joint Custody and
Frequent Access (1989).) This conclusion is supported
by Dr. Judith Wallerstein, who states that children
exposed to chronic conflict between divorced parents
are more likely to be emotionally, behaviorally, and
socially disturbed than children whose parents are
cooperative. (Wallerstein, et al., Children of
Divorce: Recent Findings Regarding Long-Term Effects
and Recent Studies of Joint and Sole Custody (1990).)
It is thus not at all clear, as the supporters forcefully argue,
that this bill will lead to less conflict in court. It seems
equally possible that parents who do not agree to share custody
voluntarily will simply bring in more and more damaging evidence
about the other parent to try to rebut the presumption of joint
custody. Even assuming that this bill leads to less conflict in
court which is not at all evident, it does not follow that it
will reduce conflict on an ongoing basis. Parents who share
custody, particularly parents who share custody equally, need,
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for the sake of their children, to be involved in each other
lives on almost a daily basis. They need to coordinate, among
other things, schooling and homework, extracurricular activities
and health issues. If parents cannot do so amicably, their
children will continue to be exposed to potentially high levels
of conflict.
The Coalition for Family Equity, one of the bill's opponents,
writes that:
Although the bill sponsors claim that children need
equal contact with both parents, what children need
first and foremost is a conflict-free atmosphere
following divorce. If the divorce is amicable enough
for both parents to choose joint custody, it may be a
workable lifestyle. But when a divorce is not
amicable, imposing a joint custody arrangement over
the objections of one parent exacerbates an already
perilous situation for the children.
Echoing that statement, the Feminist Majority, another of the
bill's opponents, write: "Unbiased research consistently shows
that children who are part of a joint custody stipulation are
subject to serious behavioral and emotional problems if there is
continuing conflict between the parents."
Is the clear and convincing rebuttal standard the appropriate
standard in custody cases between the parties? Under this bill,
the presumption for equal access joint custody may be overcome
only by clear and convincing evidence that such a custody
arrangement would not be in the child's best interest. However
this proposed evidentiary standard is not currently used in any
custody disputes between parents, even when domestic violence is
involved. The lower preponderance of the evidence standard is
used. In particular, the presumption against awarding custody
to a batterer under Family Code Section 3044 can be overcome by
the simple preponderance of the evidence standard.
The clear and convincing evidence standard is used only, for
example, where the court, having assumed jurisdiction of a
dependent child, is awarding custody of that child to a
nonparent without the consent of the parents. ( See In re Jamie
M . (1982) 134 Cal. App. 3d 530.) Likewise when a court grants a
petition for guardianship over the natural parent's objections,
the court must rely on clear and convincing evidence. ( See
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Guardianship of Jenna G. (1998) 63 Cal. App. 4th 387.) In
addition, clear and convincing evidence was required to declare
a child free from the custody and control of the natural parent
who had been convicted of manslaughter. ( See In re Geoffrey G.
(1979) 98 Cal. App. 3d 412.)
The Judicial Council, one of the bill's opponents, raises an
additional concern that the very high numbers of
self-represented litigants in family law matters will further
exacerbate "the problems that would be created by AB 1307, as
these parties would be hard pressed to overcome a presumption of
joint custody by 'clear and convincing evidence.' Due to the
structure of the law, the court could find itself unable to make
orders that it deemed in the best interest of a child because a
self-represented litigant would not know how to overcome the
burden of proof." Given current custody law in California and
the large number of unrepresented litigants, the clear and
convincing rebuttal standard in this bill seems highly unwise
and potentially detrimental to the best interests of children.
The courts, the judges, the Bar, women's groups and groups
advocating of behalf of victims of domestic violence are
strongly opposed to this bill . These groups argue that the
current standard, which gives judges the widest possible
discretion to make custody decisions in the best interest of
children, helps ensure that the needs of children are the
court's paramount concern, and that this bill could harm
children, families and victims of domestic violence.
The Judicial Council argues that the bill could inappropriately
shift the court's focus from the best interest of the child to
the rights of the parents. The Judicial Council argues that
such change of custody law "implies that an equal custody share
is in the best interest of most children, a premise which
oversimplifies the wide array of family situations that courts
encounter in child custody cases on a daily basis."
The Family Law Section of the State Bar is concerned that this
bill would restrict the court's discretion to address the needs
of all children: "Judicial discretion is necessary in custody
matters because parents are different, children are different,
and families are different. This difference requires different
custody orders tailored to fit the specific family and the needs
of the children." Instead of allowing for those differences,
the Bar finds that this bill offers a "cookie cutter" approach
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that will fail to take into account important issues, such as
the age of the children, their special needs, geographic
problems or scheduling issues, among other things.
To support their opposition to the bill, the Coalition for
Family Equity provides a quote from a decade old editorial in
the Sacramento Bee in response to similar legislation proposed
then: "Where divorced parents hate each other - an all
too-common occurrence - joint custody merely serves to thrust
helpless children into war zones. The joint custody presumption
also creates a weapon that unscrupulous parents and their
lawyers can use as a threat to negotiate lower child-support
payments with their former spouses."
The California Alliance Against Domestic Violence is also
strongly opposed to the bill, concerned that the bill's creation
of a presumption in favor of joint custody will have "serious
effects on the well-being of children involved, as well as the
battered parent." Granting joint custody to a batterer,
"endangers the abused parent by allowing the batterer to have
increased access to and control over his victim. It also
increases the likelihood that the child will witness further
violence, become a victim of abuse, or become a pawn in the
batterer's attempts to harass the abused parent," something that
under the bill can only be overcome by clear and convincing
evidence.
REGISTERED SUPPORT / OPPOSITION :
Support
Associated Family Therapy for Effective Recovery (A.F.T.E.R.)
American Retirees Association
California Shared Parenting Alliance
Coalition of Parent Support
Navy League of the United States
Many individuals
Opposition
Business and Professional Women/USA
California Alliance Against Domestic Violence
California Judges Association
California Federation BPW/USA
California National Organization for Women
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California's Women's Law Center
Coalition for Family Equity
Commission on the Status of Women
Family Law Section of the State Bar of California
Feminist Majority
Judicial Council
National Council of Jewish Women
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334