BILL ANALYSIS
AB 2893
Page 1
Date of Hearing: April 18, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2893 (Mountjoy) - As Introduced: February 24, 2006
SUBJECT : SEX OFFENDERS: CHILD CUSTODY AND VISITATION
KEY ISSUE : SHOULD A REGISTERED SEX OFFENDER, WHOSE VICTIM WAS
HIS OR HER OWN CHILD OR GRANDCHILD, BE PROHIBITED FROM EVER
BEING GRANTED CUSTODY OR UNSUPERVISED VISITATION WITH A CHILD OR
GRANDCHILD?
SYNOPSIS
This bill seeks to protect children from unsupervised contact
with registered sex offenders by prohibiting the court from
granting either physical or legal custody of, or unsupervised
visitation with, a child or a grandchild to a parent who is a
registered sex offender and the victim was the person's child or
grandchild. This prohibition is absolute, with no exceptions
permitted. The author contends that this bill is necessary "to
assure victims of child sexual abuse by their own parents or
grandparents that they will never again be placed in a position
to be sexually abused by those who would be protecting them ever
again."
The bill is supported by, among others, the California Police
Chiefs Association and the California Protective Parents
Association. The Family Law Section of the State Bar supports
the bill only if it is amended to provide judges with limited
discretion to permit custody or unsupervised visitation in that
very rare case in which such an award is in the best interest of
the child and can be done in such a way as to ensure the child's
safety. The American Civil Liberties Union opposes the bill
because it bars, absolutely, registered sex offenders from
custody or visitation with their child or grandchild, regardless
of the best interests of the child.
SUMMARY : Denies custody and unsupervised visitation for
certain registered sex offenders. Specifically, this bill
denies physical or legal custody or unsupervised visitation to a
registered sex offender with his or her child or grandchild if
the victim was the person's child or grandchild.
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EXISTING LAW :
1)Provides courts with the widest discretion to make custody
determinations that are in the best interest of the child.
(Family Code Section 3040.)
2)Provides that a person who is required to register as a sex
offender where the victim was a minor or has been convicted of
child endangerment, injuring a child, or annoying or molesting
a child, shall not be granted custody or unsupervised
visitation with a child unless the court finds there is no
significant risk to the child and states its reasons on the
record. (Family Code Section 3030(a)(1).)
3)Provides that a person who resides with a person required to
register as a sex offender for a crime where the victim was a
minor shall not be granted custody or unsupervised visitation
with a child unless the court finds there is no significant
risk to the child and states its reasons on the record.
(Family Code Section 3030(a)(2).)
4)Holds that, for purposes of establishing, modifying or
terminating a custody or visitation order, the fact that a
child is permitted unsupervised contact with a person required
to register as a sex offender for a crime where the victim was
a minor is prima facie evidence that the child is at
significant risk, and that prima facie evidence constitutes a
presumption affecting the burden of proof. The presumption
does not apply if there are factors mitigating against its
application, including whether the person seeking custody is
also required to register as a sex offender where the victim
was a minor. (Family Code Section 3030(a)(4).)
5)Provides that no person who has been convicted of rape shall
be granted custody of, or visitation with, a child who was
conceived as a result of that rape. (Family Code Section
3030(b).)
6)Provides that no person who has been convicted of murder in
the first degree shall be granted custody of or visitation
with a child when the victim was the other parent of the
child, unless the court finds there is no risk to the child's
health, safety and welfare. (Family Code Section 3030(c).)
7)Provides that an adult must register for life as a sex
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offender if he or she commits a specified sex offense. There
are over 30 of such offenses, including lewd act in public,
sexual battery, indecent exposure, annoying or molesting a
child, rape, sodomy, a lewd act with a child, oral copulation,
rape or sodomy with a foreign object, pimping or pandering a
minor under the age of 16, kidnapping for purposes of
committing a sex crime, and continuous sexual abuse of a
child, assault with the intent to commit a sex crime. (Penal
Code Section 290(a)(2)(A).)
FISCAL EFFECT : The bill as currently in print is keyed
non-fiscal.
COMMENTS : This bill seeks to protect children from unsupervised
contact with registered sex offenders by prohibiting the court
from granting either physical or legal custody of, or
unsupervised visitation with, a child or a grandchild to a
parent who is a registered sex offender and the victim was the
person's child or grandchild. This prohibition is absolute,
with no exceptions permitted.
The author contends that this bill is necessary "to assure
victims of child sexual abuse by their own parents or
grandparents that they will never again be placed in a position
to be sexually abused by those who would be protecting them ever
again. We should put ourselves in the shoes of these children
and feel the betrayal and fear they feel when they are returned
to the care of those who have sexually abused them."
People convicted of various sex offenses are required to
register as sex offenders. The offenses requiring registration
are numerous and include rape, sexual battery, aggravated sexual
assault of a child, sodomy, incest, soliciting prostitution,
pimping, possession of child pornography, and indecent exposure.
Under current law, there are three standards used to determine
custody and visitation issues for registered sex offenders and
for those who have committed specified criminal acts. First, if
the person seeking custody or unsupervised visitation with a
child is a registered sex offender or lives with a registered
sex offender then custody or unsupervised visitation is denied
unless the court finds there is no significant risk to the
child. Second, without exception, neither custody nor
visitation is allowed with the perpetrator of a rape if the
child was conceived as a result of that rape. Third, and
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somewhere between those other two standards, a person who was
convicted of first degree murder of a child's other parent, may
not be granted custody of, or unsupervised visitation with, that
child unless the court finds there is no risk to the child's
health, safety and welfare.
ARGUMENTS IN SUPPORT : Supporters of the bill, which include
Calegislation, California Family Alliance, California Family
Council, California Police Chiefs Association, and California
Protective Parents Association, argue that this bill is
necessary to protect children from being re-victimized. Writes
the California Protective Parents Association: "Our
organization believes that registered sex offenders should not
be allowed unsupervised contact with children under any
condition, due to the risk of recidivism. Once is enough."
The Family Law Section of the State Bar (Flexcom) supports the
bill, if amended to provide judges with limited discretion .
Flexcom is concerned that currently there is no discretion under
this bill to award custody or unsupervised visitation in "those
inevitable cases" where awarding custody or visitation is in the
best interest of the child and can be done safely. Flexcom
argues that the bill, as currently drafted, applies to those
convicted only of misdemeanors and does not differentiate
between acts committed 50 years ago and acts committed just last
week. To support their request for an amendment to provide the
court with limited discretion, they provide the example of a man
was convicted of exposing himself to his family under extreme
intoxication 20 years earlier. He is now a leader in Alcoholics
Anonymous, and, since that very unfortunate incident, has led an
exemplary work and life and has a new family. This bill would
absolutely bar custody or unsupervised visitation with his new
children, no matter what. This would be true even if the other
parent was, for whatever reason, unavailable to raise the
children, effectively orphaning the children in question.
Flexcom suggests that the court be given the discretion to award
custody or unsupervised if the court finds that there is no
significant risk to the child. However, this is the current
legal standard, since the person seeking custody or visitation
is a registered sex offender. It is possible to increase the
standard, for people who have abused their own children or
grandchildren, but still allow the court some discretion in the
right case by instead allowing a court to award custody or
unsupervised visitation only if the court determines that there
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is no risk to the child's health, safety and welfare. This is
the same standard used in custody cases involving a parent who
was convicted of first degree murder of the child in question's
other parent. To ensure that the best interests of children are
protected, this Committee may wish to discuss with the author
the possible benefit of amending the bill to allow the court the
ability to grant custody or unsupervised visitation only if the
court determines that there is no risk whatsoever to the child's
health, safety and welfare .
ARGUMENTS IN OPPOSITION : The American Civil Liberties Union
opposes the bill outright because it bars, absolutely, specified
registered sex offenders from custody or visitation with their
child or grandchild, regardless of the best interests of the
child. Moreover, the ACLU argues, denying a parent or child the
fundamental right of a relationship with the other, without a
hearing, violates due process.
REGISTERED SUPPORT / OPPOSITION :
Support
Calegislation
California Family Alliance
California Family Council
California Peace Officers' Association
California Police Chiefs Association
California Protective Parents Association
Children's Civil Rights Union
Family Law Section of the State Bar (if amended)
Mothers of Lost Children
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
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