BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2893 A
Assembly Member Mountjoy B
As Amended August 7, 2006
Hearing Date: August 8, 2006 2
Family Code 8
BCP:rm 9
3
SUBJECT
Sex Offenders: Child Custody and Visitation
DESCRIPTION
This bill seeks to prevent a child from being placed in a
home with a registered sex offender whose victim was a
minor, or have unsupervised visitation with that offender,
when a court fails to state its reasons for finding no
significant risk to the child in writing or on the record.
BACKGROUND
California law requires individuals to register as sex
offenders upon conviction of certain enumerated crimes.
Convictions that require registration as a sex offender
include rape, sexual battery, transporting a child for lewd
or lascivious acts, sexual assault of a child, incest,
sodomy and indecent exposure.
Recognizing the risk that registered sex offenders pose to
minor children, previous legislation imposed safeguards to
prevent certain offenders from gaining custody over minor
children. Senator Torlakson's SB 594, (Ch. 483, Stats. of
2005) effective January 1, 2006, raised a presumption that
a child who has unsupervised contact with a felony
registered sex offender, where the victim was a minor, is
at significant risk. Absent mitigating factors, SB 594
prevents a court from granting custody or unsupervised
visitation to those individuals. If the court does grant
custody or unsupervised visitation, current law mandates
(more)
AB 2893 (Mountjoy)
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placement of the reasons behind finding no significant risk
to the child in writing or on the record.
Thus, the key component of the existing statute is the
requirement for the court to explain its reasons for
finding that the registered sex offender does not pose a
significant risk to the child. Those reasons, either in
writing or on the record, provide a basis for appeal and
ensure that the offender meet their statutory burden.
Absent from existing law is a statement of the consequences
for failure to place those findings in writing or on the
record, thus potentially placing the child in the custody
of the registered sex offender.
AB 2893 would fill in this gap in existing law by stating
that a child may not be placed in a home with a registered
sex offender where the victim was a minor, or permitted to
have unsupervised visitation with that offender, unless the
court states the reasons for its findings in writing or on
the record.
CHANGES TO EXISTING LAW
Existing law requires a court to grant custody or
visitation according to the best interests of the child.
[Fam. Code 3040, 3100.]
Existing law requires a finding of no significant risk to
the child prior to a grant of custody or unsupervised
visitation to a registered sex offender, where the victim
was a minor, or to an individual convicted of child
abandonment, neglect, abuse or molestation. Existing law
also requires a finding of no significant risk to the child
prior to a grant of custody or unsupervised visitation if
anyone in a person's household is required to register as a
felony sex offender, where the victim was a minor.
Existing law presumes a significant risk to the child from
unsupervised contact with a felony sex offender whose
victim was a minor. [Fam. Code 3030.]
Existing law requires findings of no significant risk to be
stated in writing or on the record. [Fam. Code 3030.]
This bill would further add that a child may not be placed
in a home in which that person resides, nor permitted to
AB 2893 (Mountjoy)
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have unsupervised visitation with that person, if those
findings are not in writing or on the record.
COMMENT
1. Stated need for the bill
Both the author and supporters emphasize the need to
fully protect children from the risk of abuse, especially
in cases where a prospective custodial parent must
register as a sex offender due to crimes against a minor.
As stated in a report on the Myths and Facts About Sex
Offenders, created by the Center for Sex Offender
Management:
[a]pproximately 60% of boys and 80% of girls who
are sexually victimized are abused by someone
known to the child or the child's family
[citation omitted]. Relatives, friends,
baby-sitters, persons in positions of authority
over the child, or persons who supervise children
are more likely than strangers to commit a sexual
assault.
The purpose behind this bill is to ensure that courts
comply with existing law that requires them to find "no
significant risk to the child" and place those findings
in writing or on the record prior to granting custody or
unsupervised visitation to registered sex offenders,
whose victim was a minor. The author's office asserts
that they have received recent reports of courts failing
to meet this statutory mandate, resulting in children
being placed in the homes of registered sex offenders
without the requisite findings.
The Incest Survivors' Speakers Bureau of Yolo County
(ISSBYC), supporter, states that AB 2893 would:
provide[] [an] important safeguard which children
need and deserve. Several members of ISSBYC, as
children, clearly remember wanting to be placed
in foster care or to be allowed to stay in foster
homes. However, we were forced to continue
living with the family members who had molested
us.
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Accordingly, AB 2893 would ensure that courts require
registered sex offenders to meet the high statutory
burden prior to being able to place children in their
homes.
2. Effect of preventing placement absent stating findings
in writing or on the record
Previous legislation, effective January 1, 2006,
significantly raised the bar for registered sex offenders
who would seek custody or unsupervised visitation of a
child. The key component of that legislation was to
presume that registered sex offenders, where the victim
was a minor, pose a significant risk to any child
permitted to have unsupervised contact with them. Any
court granting custody to those offenders, or to an
individual where a felony registered sex offender whose
victim was a minor resides in their household, is
required to place their reasons for finding no
significant risk to the child in writing or on the
record. [Fam. Code 3030.]
Absent from those provisions are any statement of the
consequences for failure to place those findings in
writing or on the record, although other provisions of
law provide for a mandamus action against a court which
fails to comply. However, in the intervening period, sex
offenders may be given custody or visitation privileges.
Accordingly, AB 2893 would give individuals and child
advocacy groups another tool by which to protect children
from registered sex offenders by preventing their
placement absent the court stating its reasons for
finding no significant risk in writing or on the record.
While this bill would not affect cases where a court
properly places the required findings in writing or on
the record, if a court fails to place those findings in
writing or on the record, the proposed change would have
several effects:
Initially, it provides another avenue by which a party
may object to a child's placement with a registered sex
offender. That objection includes allowing a party to
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prevent the placement in cases where a court fails to
make the required finding.
Furthermore, this change properly places emphasis on the
court's reasons for granting custody or unsupervised
visitation to the registered sex offender. The routine
review of these findings would lead to both the
opportunity to appeal erroneous conclusions, and
discovery of cases where the court failed to make the
required statutory finding. Accordingly, AB 2893 would
ensure that courts are requiring registered sex offenders
to meet the newly enacted burden.
3. Importance of preventing the placement of children
with sex offenders with individuals who do pose a
significant risk
Numerous studies have documented the lifelong
psychological and physical damage caused to children as a
result of childhood sexual abuse. As noted by the
National Institute of Justice's article entitled
"Managing Adult Sex Offenders in the Community:"
[c]omponents of the trauma associated with sexual
assault include shame, self-blame, fear,
developmental crises, posttraumatic stress
disorder, and the threat or actuality of physical
violence, terror, and injury. Most profound in
its traumatic implications is the violation of
trust that occurs if, as in most sexual assault
victimizations, offenders are known to victims.
Trauma and the length and level of recovery seem
linked to trust violation more than to many other
factors. Thus, what might be regarded by some as
a relatively minor type of sexual assault (e.g.,
"just fondling") can be extremely traumatic to a
victim who trusted the perpetrator.
Accordingly, AB 2893 represents another step to protect
children from these harms that could be caused by
exposure to certain registered sex offenders.
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4. Opposition by the American Civil Rights Union and the
California Attorneys for Criminal Justice
Both the American Civil Rights Union (ACLU), and the
California Attorneys for Criminal Justice (CACJ)
submitted objections to previous versions of this bill.
The provisions contained in those versions of the bill
have been removed and replaced with the present language.
Neither the ACLU, nor CACJ has submitted a letter
removing their opposition to the bill. Staff was unable
to contact either the ACLU or CACJ to determine whether
they remain opposed to the bill at this time.
Support: California District Attorneys Association;
Office of the Sheriff of San Bernardino County;
Junior Leagues of California State Public Affairs
Committee (SPAC); Incest Survivors' Speakers Bureau
of Yolo County; Child Abuse Solutions, Inc.; Law
Officers of Cynthia L. Spencer; Calegislation;
Mothers of Lost Children; California Family Council;
California Police Chiefs Association; California
Protective Parents Association; Los Angeles District
Attorney's Office; Children's Civil Rights Union;
one individual.
Opposition: American Civil Liberties Union (ACLU);
California Attorneys for Criminal Justice (CACJ)
HISTORY
Source: Author
Related Pending Legislation: SB 1820 (Battin), would have
prohibited a court from granting
custody of, or unsupervised
visitation with, a child to a
registered sex offender if the victim
was a minor, unless the court finds
clear and convincing evidence that
there is no significant risk to the
child. (This bill is currently in
this committee.)
Prior Legislation: SB 544 (Battin, 2005), would have
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absolutely barred custody or unsupervised
visitation for certain registered sex
offenders. (This bill was returned to
Secretary of Senate pursuant to Joint Rule
56.)
SB 33 (Battin, Chapter 477, Statutes of
2005), revised penalties and proof
requirements for cases involving certain
registered sex offenders.
Prior Vote: Asm. Jud. (Ayes 9, Noes 0)
Asm. Floor (Ayes 74, Noes 0)
Sen. Jud. (Ayes 1, Noes 1) (Granted
reconsideration)
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