BILL NUMBER: SB 594 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 10, 2005
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. 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 of the Statutes of
1998 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.
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) No person shall be granted physical or legal
custody of, or unsupervised visitation with, a child if anyone
residing in the person's household is required, as a result of a
felony conviction in which the victim was a minor, to register as a
sex offender under Section 290 of the Penal Code, unless the court
finds there is no significant risk to the child and states its
reasons in writing or on the record.
(3) The fact that a child is permitted
unsupervised contact with a person who is required , as a result
of a felony conviction in which the victim was a minor, to be
registered as a sex offender under Section 290 of the Penal Code,
where the victim was a minor, or 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. However, this presumption shall not apply
if there are factors mitigating against its application, including
whether the party seeking custody is also required, as the result of
a felony conviction in which the victim was a minor, to register as a
sex offender under Section 290 of the Penal Code.
(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. 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
3030.5.
(a) Upon the motion of one or both
parents, or the legal guardian or custodian, or upon the court's own
motion, an order granting physical or legal custody of, or
unsupervised visitation with, a child may be modified or terminated
if either of the following circumstances has occurred since the order
was entered, 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 , as a
result of a felony conviction in which the victim was a minor,
to be registered as a sex offender under Section 290 of the Penal
Code where the victim was a minor .
(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 , as a result of a felony conviction in
which the victim was a minor, to be registered as a sex
offender under Section 290 of the Penal Code where the
victim was a minor .
(b) The fact that a child is permitted unsupervised contact with a
person who is required , as a result of a felony conviction in
which the victim was a minor, to be registered as a sex
offender under Section 290 of the Penal Code, where the
victim was a minor, 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.
However, this presumption shall not apply if there are factors
mitigating against its application, including whether the party
seeking custody is also required, as the result of a felony
conviction in which the victim was a minor, to register as a sex
offender under Section 290 of the Penal Code.
(c) The court shall not modify an existing custody order upon the
ex parte petition of one party pursuant to this section without
providing notice to the other party. This notice provision applies
only when the motion for custody change is based solely on the fact
that the child is allowed unsupervised contact with a person
required, as a result of a felony conviction in which the victim was
a minor, to register as sex offender under Section 290 of the Penal
Code and does not affect the court's ability to remove a child upon
an ex parte motion when there is a showing of immediate harm to the
child.