BILL NUMBER: SB 594 CHAPTERED
BILL TEXT
CHAPTER 483
FILED WITH SECRETARY OF STATE OCTOBER 4, 2005
APPROVED BY GOVERNOR OCTOBER 4, 2005
PASSED THE SENATE AUGUST 25, 2005
PASSED THE ASSEMBLY AUGUST 18, 2005
AMENDED IN ASSEMBLY AUGUST 15, 2005
AMENDED IN ASSEMBLY JUNE 14, 2005
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, 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 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.
The bill would incorporate additional changes in Section 3030 of
the Family Code proposed by AB 220, to be operative only if AB 220
and this bill are both chaptered and become effective on or before
January 1, 2006, and this bill is chaptered last.
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, subdivision
(d) of 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 care or 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..."
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 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, 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 or visitation 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. 2.5. 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 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, 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 or visitation 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 experiences intimate
partner battering.
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) 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.
(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.
(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, 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 or visitation 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 or visitation
order upon the ex parte petition of one party pursuant to this
section without providing notice to the other party and an
opportunity to be heard. This notice provision applies only when the
motion for custody or visitation 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 a 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.
SEC. 4. Section 2.5 of this bill incorporates amendments to
Section 3030 of the Family Code proposed by both this bill and
Assembly Bill 220. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2006, (2)
each bill amends Section 3030 of the Family Code, and (3) this bill
is enacted after Assembly Bill 220, in which case Section 2 of this
bill shall not become operative.