BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 544 S
Senator Battin B
As Amended March 29, 2005
Hearing Date: May 3, 2005
Family Code 5
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SUBJECT
Sex Offenders: Custody and Visitation
DESCRIPTION
This bill would prohibit a parent who has been convicted of
a sex crime against a minor from being granted custody of
or unsupervised visitation with a child under the age of
14. This bill would also prohibit a parent who has been
convicted of a sex crime against a minor from being granted
custody of or unsupervised visitation with a child between
the ages of 14 and 18 unless the court finds that the
parent presents no risk to the child.
BACKGROUND
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, a person required to register as a sex
offender for a crime against a minor, or a person convicted
of child endangerment, inflicting corporal punishment on a
child, or annoying or molesting a child, may not be granted
unsupervised visitation or custody of a child unless the
court finds that the person poses no significant risk to
the child. The court must state its reasons in writing or
(more)
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on the record.
CHANGES TO EXISTING LAW
Existing law provides that custody determinations should be
made according to the best interest of the child. [Family
Code Section 3040.]
Existing law provides that persons who are required to be
registered as sex offenders where the victim was a minor or
have 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.
This bill would instead prohibit that person from being
granted custody of or unsupervised visitation with a child
who is under the age of 14 and would also prohibit that
person from being granted custody of or unsupervised
visitation with a child who is between 14 and 18 unless the
court finds there is no risk to the child and states its
reasons on the record.
COMMENT
1. Stated need for the bill
The author, relying on reported high recidivism rates for
people convicted of lewd acts with a child, asserts that
an individual who has been convicted of a sex crime
against a minor has already proven their risk to
children. Accordingly, the author argues sex offenders
should not be allowed unsupervised contact with their own
children.
One supporter agrees, stating that current law
inappropriately allows convicted sex offenders "another
chance to convince the court they are 'not a substantial
risk' in determining issues of custody and visitation."
She argues that this "loophole" in the law is used by
"unscrupulous criminals to retain unfettered access to
innocent children."
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2. The blanket prohibition created in this bill eliminates
judicial consideration of the child's best interest
Judicial Council of California, the American Civil
Liberties Union (ACLU) and the California Judges
Association (CJA) oppose this bill because it eliminates
all judicial discretion in determining the best custody
or visitation arrangement for the child. The ACLU urges:
SB 544 is fundamentally flawed because it treats
registered sex offenders as a class of individuals to
whom it would not be 'in the best interests of the
child' to grant custody or unsupervised visitation
rights. Depending on the nature of the parent's crime
and the relationship between both parents and the
child, it may be in the best interest of the child for
custody to be granted to the registered sex offender
parent.
Because this bill would not allow a court to grant
unsupervised visitation or custody to a registered sex
offender under any circumstances, the court could not
consider the parenting abilities of the other parent, the
child's attachment and relationship with the sex offender
parent, or the nature or circumstances of the sex
offender parent's conviction. The determination of
custody arrangements is, by necessity, highly
individualized and based on the unique circumstances of
each case and the needs of each child. Judicial Council
explains that under this bill "the court would be unable
to allow a child access to a parent even when the court
finds there is no significant risk to the child from that
parent, and the court believes such contact would be in
the child's best interest. Such a result is at odds with
the core statutory purpose of the court in child custody
matters?."
3. This bill would make custody or unsupervised visitation
impossible for persons convicted of the specified
offenses
The prohibition on unsupervised visitation and custody
would apply to persons required to register as sex
offenders for crimes against minors as well as to people
convicted of child endangerment or abuse, injuring a
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child by corporal punishment, or annoying or molesting a
child. For people convicted of these crimes, all
unsupervised visitation or custody would be prohibited
with a child under age 14. For a child between the ages
of 14 and 18, the court must find that there is no risk
to the child before granting unsupervised visitation or
custody. Judicial Council and CJA describe this standard
as "very difficult," "unrealistic," and ultimately
"unworkable." Accordingly, although this bill purports
to distinguish between children of different ages, in
effect, this bill would preclude a parent convicted of
the specified offenses from having unsupervised contact
with his or her child, no matter how old the child is,
how old the parent's conviction is, or even whether the
parent has been rehabilitated by all accounts.
SHOULD NOT THE COURTS RETAIN THEIR CURRENT DISCRETION TO
MAKE VISITATION AND CUSTODY ORDERS IN THE BEST INTEREST
OF THE CHILD?
4. Additional concerns raised by CJA
CJA is also concerned that this bill does not require
notice to people who are required to register as sex
offenders because of a plea in criminal court. As a
result, people who plead guilty to offenses requiring
registration would not be aware of the consequences of
their plea and its effect on future issues of child
custody and visitation.
Support: California Protective Parents Association; one
individual
Opposition: Judicial Council of California; American Civil
Liberties Union; California Judges Association
HISTORY
Source: Author
Related Pending Legislation: SB 594 (Torlakson), would
create a rebuttable presumption that
a parent who is a registered sex
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offender or who resides with a
registered sex offender should not be
granted unsupervised visitation or
custody of a child
Prior Legislation: None Known
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