BILL NUMBER: SB 594 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 21, 2005
AMENDED IN SENATE MARCH 29, 2005
INTRODUCED BY Senator Torlakson
FEBRUARY 18, 2005
An act to amend Section 3030 of, and to add Section 3030.5 to, the
Family Code, relating to support obligations.
LEGISLATIVE COUNSEL'S DIGEST
SB 594, as amended, Torlakson. Custody and visitation: sex
offenders.
Existing law prohibits 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 that there is no
significant risk to the child and states its reasons in writing or on
the record.
This bill would expand that provision to prohibit a court from
granting custody of, or unsupervised visitation with, a child to a
person if that person resides with either a registered sex offender
whose victim was a child or another person who has been
convicted of one of specified crimes against a child . The
bill would also provide that an existing custody or visitation order
shall be modified or terminated consistent with that provision, as
specified. The bill would also include related
findings and declarations of the Legislature.
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. The Legislature finds and declares all of the
following:
(a) The children of the State of California are placed at risk
when permitted to remain in contact with a parent or caretaker who
has committed a sex crime.
(b) It is the policy of the State of California that the health,
safety, and welfare of children shall be the court's primary concern
in determining the best interest of children when making orders
regarding custody or visitation.
(c) The perpetration of child abuse or domestic violence in a
household in which a child resides is detrimental to the child.
(d) Custody and visitation orders shall be made in a manner that
ensures the health, safety, and welfare of the child and the safety
of all family members.
(e) The purpose of this legislation is to ensure that information
regarding sex crimes is appropriately considered by the court in
child custody matters and children are protected from an at-risk
environment.
(f) With regard to juvenile court proceedings in which child
protective services seeks to remove the child from the home and
declare the child a dependant of the State of California, Section
355.1 of the Welfare and Institutions Code establishes a presumption
that a child is placed at "substantial risk of abuse or neglect" if a
"parent guardian, or any other person who resides with, or has the
custody of, a minor who is currently the subject of the petition
… is required, as the result of a felony conviction, to
register as a sex offender pursuant to Section 290 of the Penal Code."
(g) In the appellate case of In re John S. (2001) 88 Cal.App.4th
1140, the court held that a stepfather's status as a registered sex
offender constituted a presumption under subdivision (d) of Section
355.1 of the Welfare and Institutions Code that his stepchild was at
a substantial risk of abuse or neglect, within the meaning of Section
300 of the Welfare and Institutions Code. The court further held
that the intent of the Legislature in enacting Section 355.1 of the
Welfare and Institutions Code was to focus on the heightened risk
facing minors who come into contact with sex offenders and to ensure
the juvenile court has information about those persons when assessing
jurisdictional facts. The court found that, "(b)ecause of the
overriding need to protect the child, the legislative considerations
regarding allocation of burden of proof should apply to noncustodial
parents and guardians." However, the presumption was not conclusive
and affected only the burden of producing evidence. Thus, parties may
still present evidence that one's status as a registered sex
offender does not place a minor at substantial risk of abuse or
neglect.
(h) Chapter 131 of the Statutes of 1998 amended Section 3030 of
the Family Code. Prior existing law prohibited registered sex
offenders and persons convicted of certain other offenses against
minors, as specified, from being granted custody of, or unsupervised
visitation with, a child, unless the court found that there was no
significant risk to the child. Chapter 131 amended the law to require
the court to state its reasons in writing or on the record when
granting physical or legal custody or unsupervised visitation.
SECTION 1.
SEC. 2. Section 3030 of the Family Code is amended to
read:
3030. (a) (1) No person shall be granted physical or legal
custody of, or unsupervised visitation with, a child if the person or
any person residing in his or her household is required to be
registered as a sex offender under Section 290 of the Penal Code
where the victim was a minor, or if the person has been convicted
under Section 273a, 273d, or 647.6 of the Penal Code, unless the
court finds that there is no significant risk to the child and states
its reasons in writing or on the record.
(2) The fact that a child is permitted unsupervised contact with a
person who is required to be registered as a sex offender under
Section 290 of the Penal Code, where the victim was a minor,
or with a person who has been convicted under Section 273a, 273d,
or 647.6 of the Penal Code, shall be
prima facie evidence that the child is at significant risk. When
making a determination regarding significant risk to the child, the
prima facie evidence shall constitute a presumption affecting the
burden of producing evidence.
(b) No person shall be granted custody of, or visitation with, a
child if the person has been convicted under Section 261 of the Penal
Code and the child was conceived as a result of that violation.
(c) No person shall be granted custody of, or unsupervised
visitation with, a child if the person has been convicted of murder
in the first degree, as defined in Section 189 of the Penal Code, and
the victim of the murder was the other parent of the child who is
the subject of the order, unless the court finds that there is no
risk to the child's health, safety, and welfare, and states the
reasons for its finding in writing or on the record. In making its
finding, the court may consider, among other things, the following:
(1) The wishes of the child, if the child is of sufficient age and
capacity to reason so as to form an intelligent preference.
(2) Credible evidence that the convicted parent was a victim of
abuse, as defined in Section 6203, committed by the deceased parent.
That evidence may include, but is not limited to, written reports by
law enforcement agencies, child protective services or other social
welfare agencies, courts, medical facilities, or other public
agencies or private nonprofit organizations providing services to
victims of domestic abuse.
(3) Testimony of an expert witness, qualified under Section 1107
of the Evidence Code, that the convicted parent suffers from the
effects of battered women's syndrome.
Unless and until a custody or visitation order is issued pursuant
to this subdivision, no person shall permit or cause the child to
visit or remain in the custody of the convicted parent without the
consent of the child's custodian or legal guardian.
(d) The court may order child support that is to be paid by a
person subject to subdivision (a), (b), or (c) to be paid through the
local child support agency, as authorized by Section 4573 of the
Family Code and Division 17 (commencing with Section 17000) of this
code.
(e) The court shall not disclose, or cause to be disclosed, the
custodial parent's place of residence, place of employment, or the
child's school, unless the court finds that the disclosure would be
in the best interest of the child.
SEC. 2.
SEC. 3. Section 3030.5 is added to the Family Code, to
read:
3030.5. (a) An order granting physical or legal custody of, or
unsupervised visitation with, a child shall be modified or terminated
upon the petition of one or both parents , or the legal
guardian or custodian, or on the court's own motion under
either of the following circumstances, unless the court finds that
there is no significant risk to the child and states its reasons in
writing or on the record:
(1) The person who has been granted physical or legal custody of,
or unsupervised visitation with the child is required to be
registered as a sex offender under Section 290 of the Penal Code
where the victim was a minor , or has been convicted under
Section 273a, 273d, or 647.6 of the Penal Code. .
(2) The person who has been granted physical or legal custody of,
or unsupervised visitation with, the child resides with another
person who is required to be registered as a sex offender under
Section 290 of the Penal Code where the victim was a minor ,
or has been convicted under Section 273a, 273d, or 647.6 of the
Penal Code. .
(b) The fact that a child is permitted unsupervised contact with a
person who is required to be registered as a sex offender under
Section 290 of the Penal Code, where the victim was a minor,
or with a person who has been convicted under Section 273a, 273d, or
647.6 of the Penal Code, shall be prima facie evidence
that the child is at significant risk. When making a determination
regarding significant risk to the child, the prima facie evidence
shall constitute a presumption affecting the burden of producing
evidence.