BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 544 S
Senator Battin B
As Amended January 4, 2006
Hearing Date: January 17, 2006
Family Code 5
BCP:cjt 4
4
SUBJECT
Sex Offenders: Custody and Visitation
DESCRIPTION
This bill would create an absolute bar to awarding custody
or unsupervised visitation of a child under 14, regardless
of the best interests of the child, to registered sex
offenders convicted of crimes against a minor or anyone
convicted of specified child abuse or neglect offenses.
Existing law already creates a qualified bar, requiring a
court finding of no significant risk, prior to granting
custody or unsupervised visitation rights to those
individuals.
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.
Children who are subjected to sexual abuse and molestation
may endure long- lasting physical and psychological damage
as a result. Senator Torlakson's SB 594, (Ch. 483, Stats.
of 2005) effective January 1, 2006, presumes 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
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from granting custody or unsupervised visitation to those
individuals.
CHANGES TO EXISTING LAW
Existing law requires a court to grant custody or
visitation according to the best interests of the child.
[Family 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 an individual convicted of child
abandonment, neglect, abuse or molestation. Findings of no
significant risk must be stated in writing or on the
record. [Family Code 3030]
Existing law presumes a significant risk to the child from
unsupervised contact with a felony sex offender convicted
of offenses against a minor. [Family Code 3030]
This bill would absolutely bar a court from granting
custody or unsupervised visitation of a child under age 14
to a registered sex offender where the victim was a minor,
or an individual convicted of child abandonment, neglect,
abuse or molestation.
This bill would not change existing law regarding children
ages 14 to 18.
COMMENT
1. Stated need for the bill
Under current law, custody or visitation of minor
children is subject to the court's discretion. According
to the author, this bill is necessary to "protect[] those
victims who do not have a voice to protect themselves."
The author further contends that "individual[s] who
[have] been convicted of a sex, abuse or neglect crime
against a minor [have] already proven their risk
potential towards children." The California Protective
Parent's Association adds that their "research shows that
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. . . children continue to report abuse, yet are forced
to remain in the custody of their abusers."
The author also cites a report by the U.S. Department of
Health and Human Services Children's Bureau finding that
parents were the perpetrators in nearly 80% of child
maltreatment cases.
2. Preventing courts from determining custody or
unsupervised visitation based upon the best interest of
the child
Currently, courts decide custody and visitation based
upon the best interest of the child. The best interest
of the child standard allows the court to evaluate all
relevant variables, including any history of abuse by a
parent seeking custody or visitation. Additionally, the
court must find "no significant risk to the child" before
granting custody or unsupervised visitation to registered
sex offenders, where the victim was a minor, or
individuals convicted of child abandonment, neglect,
abuse or molestation. The court must state its reasons
for finding no significant risk in writing or on the
record. Furthermore, SB 594 (Torlakson 2005) creates a
rebuttable presumption that unsupervised contact with
felony sex offenders, where the victim was a minor, poses
a significant risk to the child.
ARE NOT THE CURRENT SAFEGUARDS SUFFICIENT TO PROTECT
CHILDREN WHILE PRESERVING COURT DISCRETION AND CHILDREN'S
AND PARENTAL RIGHTS?
This bill seeks to eliminate all judicial discretion for
the above classes of individuals when seeking custody or
unsupervised visitation of a child under age 14. The
Judicial Council of California warns that "court[s] could
be placed in the untenable position of having to award
sole custody to a parent that it determines is less able
to care for the child." Instead of placing a child
according to the child's best interests, this bill would
mandate placement of certain children.
3. Deprivation of parental rights
The United States Supreme Court has found that it is a
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"fundamental right of parents to make decisions
concerning the care, custody, and control of their
children." [ Troxel v. Granville (2000) 530 U.S. 57, 66.]
This bill prevents a parent in the specific categories
from having physical as well as legal custody. The
essentially automatic removal of legal custody prevents a
parent from making decisions concerning their child.
Once an individual falls within the class of individuals
covered by this bill, a court is mandated to deny custody
or unsupervised visitation. Unlike a juvenile
termination of parental rights proceeding, the individual
has no effective opportunity to be heard, aside from
their criminal proceeding, prior to the deprivation of
their parental rights. As mentioned below, there is no
requirement that the individual even be notified at their
criminal proceeding of the consequences of a guilty plea.
DOES NOT THIS BILL VIOLATE DUE PROCESS BY DEPRIVING
PARENTS OF THEIR PARENTAL RIGHTS WITHOUT AN EFFECTIVE
OPPORTUNITY TO BE HEARD?
Additionally, this bill does not exempt those individuals
who currently have custody or unsupervised visitation of
a child under age 14. Under this bill, a custodial
parent falling within the class of individuals could be
prospectively denied custody regardless of current home
conditions. This may have the undesirable result of
removal of young children, against their best interest,
from stable, healthy home environments. Assuming the
court placed the child with the custodial parent
according to the child's best interest, as required by
current law, this bill could displace the young child
against their best interest. This mandatory removal of
young children from their parent would undoubtedly put
great emotional stress on the child.
WOULD THIS BILL OPERATE RETROACTIVELY TO TERMINATE
CURRENT HOME PLACEMENT, EVEN IF THERE HAS BEEN NO RISK TO
THE CHILD?
SHOULD THE CURRENT HOME ENVIRONMENT OF CHILDREN UNDER AGE
14 BE CONSIDERED PRIOR TO TERMINATING CUSTODY?
4. Offenses that would lead to an automatic deprivation
of parental rights
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This bill would treat all registered sex offenders
equally, regardless of whether their crime was child
molestation or misdemeanor indecent exposure. Current law
requires courts to impose mandatory lifetime registration
for any offense listed in the registration statute.
Under this bill, anyone convicted of misdemeanor indecent
exposure, where the victim was a minor, would be
absolutely barred from receiving custody of a child under
age 14.
While serial child molesters likely pose a serious threat
to children, the same broad statement cannot be said
about someone convicted of one count of misdemeanor
indecent exposure. For example, any individual convicted
of streaking during a college football game, where a
minor was offended, must register as a sex offender.
This statute absolutely bars that individual from gaining
custody or unsupervised visitation of a child under age
14. If the individual was married at the time of child's
birth, any divorce action essentially terminates their
parental rights to that child.
This bill also applies to individuals convicted of
abusing or endangering the health of a child, infliction
of cruel or inhuman corporal punishment upon a child,
injuring a child resulting in a traumatic condition and
child molestation. While these are all abhorrent crimes
against children, the present standard already requires
individuals in this bill to prove "no significant risk to
the child" prior to receiving custody or unsupervised
visitation of the child. The combination of requiring no
significant risk, plus considering the best interests of
the child, already places these cases under intense
scrutiny.
Furthermore, this bill only changes the result in cases
where an individual meets the difficult burden of proving
no significant risk to the child and that custody is in
the best interest of the child. In those cases, this
bill disregards the lack of significant risk and mandates
placement with the other parent, even when such placement
may be against the best interest of the child.
5. Concerns regarding criminal pleas
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This bill does not include any language requiring a
warning to those submitting a guilty plea in a criminal
proceeding. The California Judges Association, in
opposition, voices concern over individuals required to
register as a sex offender as a result of a criminal plea
bargain: "[t]he bill does not require that these
individuals be provided notice as to consequences
regarding this plea and its effect on future issues of
child custody and visitation."
If provided notice, individuals could be more resistant
to plea agreements and thus force more cases to trial.
This issue probably is better handled by the Senate
Committee on Public Safety.
Support: California Peace Officers' Association;
California Protective Parents Association;
Children's Civil Rights Union; two individuals
Opposition: Judicial Council of California; ACLU;
California Judges Association
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: SB 594 (Torlakson), Chapter 483,
Statutes of 2005
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