BILL NUMBER: SB 359 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Ortiz
FEBRUARY 17, 2005
An act to add Section 3100.5 to the Family Code, relating to child
custody.
LEGISLATIVE COUNSEL'S DIGEST
SB 359, as introduced, Ortiz. Child custody.
Existing law requires a court to consider, when there is a
protective order that has been directed to a parent, whether the best
interest of the child requires that any visitation by a parent be
supervised, suspended, or denied.
This bill would require a court to impose supervised visitation,
notwithstanding a stipulation to the contrary by the parties or
recommendations by the mediator, when the court has granted
visitation to a parent, and has been made aware of evidence of risk
to the child indicating that it is necessary to protect the child
from risk of harm due to physical or sexual abuse, neglect, substance
abuse by a parent or a member of the parent's household, or domestic
violence perpetrated by that parent or the risk of abduction by a
parent. The bill would prohibit a court from granting unsupervised
visitation to a parent who has a felony conviction of any specified
offense or any conviction of a lewd or lascivious act on a child
under 14 years of age, except as specified. The bill would also
require a court to find by a preponderance of the evidence that a
biological or adoptive parent, to whom the child is attached and who
plays an important developmental role in the child's life, poses a
risk to the child, as specified, before denying visitation or
imposing supervised visitation on that parent.
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 3100.5 is added to the Family Code , to read:
3100.5. (a) The Legislature finds and declares that children who
are placed in the unsupervised custody of, or who are permitted to
have unsupervised visitation with, a perpetrator of child abuse or
domestic violence are at risk for many reasons, including the
following: direct child abuse by the perpetrator; exposure to acts of
domestic violence; being used by the perpetrator as weapons for post
separation reprisal against an ex-spouse; or being taught to become
perpetrators or victims of domestic violence themselves. It is the
intent of the Legislature that the courts seek to protect children
from harm that is the result of children being placed in the
unsupervised custody of perpetrators of child abuse or domestic
violence.(b) Notwithstanding a stipulation to the contrary by the
parties or recommendations by the mediator, the court shall impose
supervised visitation when the court has granted visitation to a
parent and the court has been made aware of evidence of risk to the
child indicating that supervised visitation is necessary to protect
the child from risk of harm due to physical or sexual abuse, neglect,
substance abuse by a parent or member of the parent's household, or
domestic violence perpetrated by that parent or the risk of abduction
by a parent.
(c) (1) Except as provided in paragraph (2), a court may not grant
unsupervised visitation to a parent who has either of the following:
(A) A felony conviction of any of the following:
(i) Murder or manslaughter.
(ii) Attempted murder.
(iii) Mayhem.
(iv) Rape as defined in Section 261 or 262 of the Penal Code.
(v) Sodomy by force, violence, duress, menace, threat of great
bodily injury, or fear of immediate and unlawful bodily injury on the
victim or another person.
(vi) Oral copulation by force, violence, duress, menace, threat of
great bodily injury, or fear of immediate and unlawful bodily injury
on the victim or another person.
(vii) Assault with the intent to commit mayhem, rape, sodomy, or
oral copulation in violation of Section 220 of the Penal Code.
(viii) Commission of rape or sexual penetration in concert with
another person in violation of Section 264.1 of the Penal Code.
(ix) Continuous sexual assault of a child in violation of Section
288.5 of the Penal Code.
(x) Domestic violence as defined in Section 13700 of the Penal
Code.
(xi) Child abuse or neglect as defined in Section 11165.6 of the
Penal Code.
(xii) Selling, furnishing, administering, giving, or offering to
sell, furnish, administer, or give to a minor any heroin, cocaine,
phencyclidine (PCP), or any methamphetamine-related drug.
(B) Any conviction of a lewd or lascivious act on a child under 14
years of age.
(2) A court may grant unsupervised visitation to a parent
described in paragraph (1) only if the court has made a determination
regarding each of the following:
(A) If the parent is restrained by a protective order granted
after a hearing, that he or she has complied with its terms and
conditions.
(B) That the parent has successfully completed with a positive
prognosis a batterer's treatment program that meets the criteria
outlined in subdivision (c) of Section 1203.097 of the Penal Code, if
the parent has been convicted of domestic violence or the court has
ordered the parent to attend a batterer's treatment program.
(C) That there is a preponderance of evidence the parent has not
committed any further acts of sexual or violent assault, domestic
violence, child abuse, or substance abuse.
(D) If the parent is on probation or parole, that he or she has
complied with its terms and conditions.
(E) That the parent has successfully completed with a positive
prognosis, and continues to meet the standards of, any court-ordered
program of alcohol or drug abuse counseling.
(F) That the parent has completed with a positive prognosis, and
continues to meet the standards of, any court ordered classes,
counseling, or therapy programs ordered to reduce the risk of harm to
the child due to abuse or neglect.
(d) A court order granting unsupervised custody or visitation to a
person with a conviction specified in paragraph (1) of subdivision
(c) is valid only if it contains the courts's specific written
reasons for granting unsupervised visitation and a statement that the
court has made the determinations required in paragraph (2) of
subdivision (c).
(e) For purposes of making a determination under this section, an
evaluator or investigator may access criminal records, probation
reports, and information from any court ordered programs, including,
but not limited to, batterer's treatment, alcohol abuse, drug abuse,
parenting, and child abuse prevention programs.
(f) (1) Before denying visitation altogether or imposing
supervised visitation on a biological or adoptive parent to whom the
child is attached and who plays an important developmental role in
the child's life, the court shall find by a preponderance of the
evidence that the parent poses a risk to the child due to one or more
of the following:
(A) Child abuse or neglect as described in Section 11165.6 of the
Penal Code.
(B) Domestic violence, as defined in Section 13700 of the Penal
Code, perpetrated by the parent.
(C) Risk of abduction by the parent.
(D) Substance abuse.
(E) The parent is a person described in subparagraph (B) of
paragraph (1) of subdivision (c).
(2) The court may not conclude that a parent is not the primary
caretaker if the parent is absent or relocates for the reasons
described in Section 3046.
(g) The court's decision to deny visitation, impose supervised
visitation, or modify an order denying visitation or imposing
supervised visitation, may be based on any admissible evidence
including, but not limited to, evidence produced by an investigation,
evaluation, or mediation. The court's decision may not be based
solely on the recommendation of, or a conclusion reached by, a
mediator, evaluator, or investigator, but shall be based on
independent consideration of any evidence presented by the parties.
(h) If the court has evidence that is the basis for a reasonable
suspicion that a parent is putting a child at risk of harm due to
child abuse, domestic violence, or substance abuse, or the threat or
risk of abduction by the parent, the court shall make an interim
order denying visitation or imposing supervised visitation to protect
the child until the court has determined the measures necessary to
protect the child on a permanent basis.
(i) Any evaluation, investigation, or assessment conducted to
determine the need for an order denying visitation rights, imposing
court ordered supervised visitation, or modifying an order denying
visitation or imposing supervised visitation shall be conducted by an
evaluator or investigator who meets the qualifications set forth in
Section 3110.5.