BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 594|
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THIRD READING
Bill No: SB 594
Author: Torlakson (D)
Amended: 5/10/05
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 5/3/05
AYES: Dunn, Morrow, Ackerman, Cedillo, Figueroa, Kuehl
NO VOTE RECORDED: Escutia
SUBJECT : Custody and visitation: sex offenders
SOURCE : Author
DIGEST : This bill expands existing law relative to
granting custody of a child to a registered sex offender 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 also provides that an existing custody or
visitation order shall be modified or terminated consistent
with that provision, as specified. The bill also includes
related findings and declarations of the Legislature.
ANALYSIS : Existing law provides that custody
determinations should be made according to the best
interest of the child.
Existing law provides that a court shall refrain from
making an ex parte order modifying custody unless there is
a showing of immediate harm to the child.
CONTINUED
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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 provides that a person who resides with a person
required to register as a sex offender for a crime where
the victim was a minor 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.
The bill provides that 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.
This bill provides that 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 so in writing or on the record. 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 is also required, as the
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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.
This bill applies the same presumption that a child is at
risk in modification proceedings as in initial custody
determinations.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/10/05)
Family Section of the California State Bar
OPPOSITION : (Verified 5/10/05)
American Civil Liberties Union
California Judges Association
ARGUMENTS IN SUPPORT : According to a supporter, a family
law attorney, this bill has its roots in a recent Contra
Costa County case custody case she handled. James and
Sally divorced in 2000, and Sally was granted primary
custody of their only son, Sam. In 2004, when James
returned his son to Sally's house after visitation, he
learned through a neighbor that the man Sally had been
living with for the past two years was a registered sex
offender. James discovered for himself on the Megan's Law
website that his ex-wife's boyfriend, Mark, had been
convicted of eight felony counts of molesting his
biological daughter beginning when she was five years old.
James asked Sally to ask Mark to move out and to keep him
away from Sam. Sally, acknowledging that she had already
known about Mark's convictions, claimed James was
overreacting and refused.
James sought an ex parte temporary change of custody with
supervised visitation to Sally. The ex parte order was
denied, but the matter was set for hearing 22 days later.
After the hearing, the judge awarded temporary full custody
to James with non-overnight visitation to Sally. The judge
also ordered that Sam not be allowed contact with Mark.
However, Sally still continues to challenge the change in
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custody.
The supporter suggests a change in the law for two reasons.
First, Sally tried to argue that Mark's status as de facto
caretaker should not be considered by the court under
current family law which only explicitly restricts custody
when the parent is a sex offender. Although the court
didn't accept this argument, the sponsor contends this
loophole in the law needs to be closed.
Second, the sponsor asserts the court should have granted
James' ex parte request for a change in custody, because
Sam was placed at a substantial risk of harm when he was
forced to return to Sally's home for the 22 days before the
full hearing. The sponsor is especially concerned about
the intimidation and abuse Sam might have suffered at the
hands of his mother and her boyfriend knowing that the
court date was impending.
ARGUMENTS IN OPPOSITION : The American Civil Liberties
Union states that, "'The interest of a parent in the
companionship, care, custody, and management of his child
is a compelling one, ranked among the most basic of civil
rights.' In re B.G ., (1974 11 Cal.3d 679, 688. In
addition, children have independent rights to establish a
parent-child relationship. This right has been called 'the
most fundamental right a child possesses in our system of
jurisprudence.' Ruddock v. Ohls , (1979) 91 Cal.App.3d 271,
278. SB 594 creates a presumption that a child is at
significant risk is the child is permitted unsupervised
contact with a person who is required to be registered as a
sex offender where the victim was a minor. The bill is
fundamentally flawed because it permits the court to make
such a determination without granting the affected party
the opportunity to be heard. It denies the fundamental
rights of both the parent and the child without due process
and would also in some cases unnecessarily upset a stable
parent-child relationship that would later be restored as
being in the best interests of the child. We urge the
elimination of the proposed evidentiary presumption."
RJG:nl 5/10/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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