BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 594 S
Senator Torlakson B
As Amended April 21, 2005
Hearing Date: May 3, 2005
Family Code 5
MJM/GMO:rm 9
4
SUBJECT
Custody and Visitation: Sex Offenders
DESCRIPTION
This bill seeks to protect children from unsupervised
contact with registered sex offenders. This bill would
create a rebuttable presumption in custody proceedings that
a child is at significant risk if allowed unsupervised
contact with a registered sex offender. Additionally, it
would prohibit the court from granting custody or
unsupervised visitation to a parent if the parent is a
registered sex offender or if the parent lives with a
registered sex offender unless the court concludes the
child is not at significant risk. This bill would also
require existing custody orders be modified or terminated
if the person required to register as a sex offender or
living with a registered sex offender could not overcome
the presumption that the child was at significant risk.
BACKGROUND
People convicted of various sex offenses are required to
register as sex offenders. The offenses requiring
registration are numerous and include rape, sexual battery,
aggravated sexual assault of a child, sodomy, incest,
soliciting prostitution, pimping, possession of child
pornography, and indecent exposure.
Under current law, a person required to register as a sex
(more)
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offender for a crime against a minor, or a person convicted
of child endangerment, inflicting corporal punishment on a
child, or annoying or molesting a child, may not be granted
unsupervised visitation or custody of a child unless the
court finds that the person poses no significant risk to
the child. The court must state its reasons in writing or
on the record.
CHANGES TO EXISTING LAW
Existing law provides that custody determinations should be
made according to the best interest of the child. [Family
Code Section 3040.]
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. [Family Code
Section 3064.]
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 would provide 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.
This bill would create a rebuttable presumption that a
child is at significant risk if the child has unsupervised
contact with a person required to register as a sex
offender for a crime where the victim was a minor. This
presumption would affect the burden of producing evidence.
This bill would require existing custody orders be modified
or terminated if a child is in the custody of a person who
is, or is residing with a person, required to register as a
sex offender for a crime where the victim was a minor.
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This bill would apply the same presumption that a child is
at risk in modification proceedings as in initial custody
determinations.
COMMENT
1. Genesis of and need for the bill
According to the sponsor, 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 custody.
The sponsor 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
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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.
According to the author,
Statistics show that rehabilitation for sex offenders
is small. The effect of lack of rehabilitation is a
high instance of recidivism. For instance, one study
cited the recidivism rate for same-sex child molesters
is as high as 53%. In addition, researchers found
that as many as 43% of extra-familial child molesters,
the group this bill seeks to target, sexually
re-offend within a four-year period. Equally as
startling is the high instance of sexually abused
children who commit acts of child or sexual abuse
later in life.
Accordingly this bill seeks to protect children
residing with a registered sex offender or who may be
awarded custody to a person who resides with a sex
offender from the predatory practices of child
molesters and stop the cycle of sexual abuse from
continuing into adulthood.
2. This bill would prohibit the court from granting custody
to or unsupervised visitation with a parent who resides
with a registered sex offender for a crime against a
minor
Under current law, the court is required to determine
that a child is not at significant risk before it may
grant custody or unsupervised visitation to a parent who
is a registered sex offender. However, current law does
not explicitly require a court, when making custody
determinations, to consider whether the parent seeking
custody or visitation lives with a registered sex
offender. In response to what the sponsor considers an
egregious loophole in the law, this bill would prohibit
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custody or unsupervised visitation for a person who
resides with a registered sex offender, unless the court
determines the child is not at significant risk.
The sponsor contends that the danger to children is the
same no matter what the relationship of the sex offender
is to the child, and the critical issue is that the sex
offender resides with the child and has unfettered access
to the child. Because the danger is the same, the court
should be required to protect children in both instances.
Although the Contra Costa County case that spawned this
bill involved a situation where a mother apparently
invited a sex offender into her home, it is also just as
likely that a parent may have a sex offender in the home
through no choice of their own. Maybe they have moved
back home, after a divorce, to get stabilized financially
and another relative in the home is a sex offender. Or
maybe a parent remarries and a child of the new spouse is
a registered sex offender. Would parents in these
situations still be allowed to maintain custody or
visitation with their child? Is it fair to limit the
custody of parents who are not intentionally disregarding
the needs of their children?
This bill includes legislative findings supporting this
additional restriction on custody. The findings draw a
parallel between Welfare and Institutions Code Section
355.1 and this bill. Section 355.1 establishes a
presumption that a child is at risk if anyone residing
with the child is required, as a result of a felony
conviction, to register as a sex offender. The sponsor
contends that if the law acknowledges in child welfare
proceedings that a child is at risk if he or she lives
with a sex offender then the law should acknowledge the
same risk in custody proceedings.
SHOULD THE RESTRICTIONS ON CUSTODY AND VISITATION APPLY
ONLY WHEN A PARENT IS RESIDING WITH A PERSON CONVICTED OF
A FELONY SEX OFFENSE REQUIRING REGISTRATION?
3. This bill would create a rebuttable presumption that a
child is at significant risk if the child is allowed
unsupervised contact with a registered sex offender
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Under this bill, before granting custody or visitation to
a parent registered as a sex offender or living with a
registered sex offender, the court must determine that
the child is not at significant risk. This bill would
also create a presumption that the child is at
significant risk if allowed unsupervised contact with a
registered sex offender. This bill specifies that the
presumption is rebuttable and affects the burden of
producing evidence.
Accordingly, under this bill, once it is established that
a child is allowed unsupervised contact with a sex
offender, the parent who is the sex offender or is
residing with the sex offender must produce evidence
tending to prove a negative-that the child is not at
risk. Presumably evidence of rehabilitation, or an
explanation of the circumstances of the crime-that it
involved a different age or gender of victim than the
child at issue, or that it was so far in the past that it
is no longer relevant - would be sufficient to rebut the
presumption. However, if the presumption is not
rebutted, the court will be forced to modify custody.
This bill assumes that it is in every child's best
interest not to be in a home with a sex offender. The
court has no discretion to consider the child's
preferences, the relationship the child has with the
custodial parent, or the risks the child might face if
placed with the other parent. (See Comment 5 for a
discussion of the implications of applying this
presumption in ex parte proceedings.)
4. This bill would require modification of existing custody
orders unless the presumption was rebutted
This bill would also provide that existing custody orders
be modified or terminated if a child is permitted
unsupervised contact with a registered sex offender
unless the parent who is the sex offender or lives with
the sex offender can rebut the presumption that the child
is at significant risk. If this presumption is not
rebutted, the court has no choice but to modify custody.
This provision of the bill presumably seeks to address
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the situation in which a custody order is established and
later one of the parents allows a sex offender to move
into the house-a boyfriend, girlfriend, new spouse. Or
perhaps one of the parents themselves is convicted of a
sex offense after custody is established. Because the
child now has contact with a sex offender, custody should
be reevaluated. However, the modification provisions of
this bill do not require that there be a change in
circumstances before custody is reevaluated and modified.
Accordingly, every existing custody order involving a
sex offender parent or a parent living with a sex
offender is subject to relitigation. The presumption
would now apply and established custody arrangements will
likely be modified.
Is it generally in the child's best interest to have
existing custody orders subject to review and
modification when circumstances haven't changed since the
custody arrangements were established?
SHOULD THIS BILL BE AMENDED TO CLARIFY THAT A CHANGE OF
CIRCUMSTANCES IS REQUIRED BEFORE CUSTODY MUST BE REVIEWED
FOR MODIFICATION OR TERMINATION?
5. This bill requires the court to modify custody upon the
petition of one party unless the presumption is rebutted
As in the Contra Costa County case, one parent may
petition the court ex parte for a modification of a child
custody order. Current law, recognizing the harm caused
a child who is uprooted from an established home,
requires the court to refrain from modifying a custody
order ex parte unless there is a showing of immediate
harm to the child. Because of the operation of the
presumption created by this bill, when a court is
petitioned ex parte for a custody change because of a sex
offender in the child's home, the court will be required
to modify custody without giving the other parent a
chance to be heard. If a parent petitions the court for
modification alleging there is a sex offender in the
other parent's house, the presumption that a child is at
significant risk applies. If the other parent isn't
present in court, how can he or she rebut the
presumption? As a result, the court's hands are tied and
would be required to modify the custody order until a
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full hearing occurs.
According to the sponsor, this is the result that should
have been reached in the Contra Costa County case. She
contends a child in the home of a sex offender is at risk
for immediate harm, just as a child with a bruise or
broken bone is at risk for immediate harm. According to
the sponsor, having a sex offender in the home is just as
dangerous as leaving a loaded gun on the table.
Accordingly, although the order might be overturned
later, it is better to err on the side of protecting the
child.
However, this argument ignores the harm to the child of
being removed from a stable custody placement.
Additionally, it assumes that mom knew her boyfriend was
a sex offender and didn't care. What about a mother who
didn't think to look up her new boyfriend on the Megan's
Law website and has no idea about the history of her
boyfriend? What about the mother who would order the
boyfriend out of the home if she did know? Parents in
these situations will not be guaranteed an opportunity to
be heard before the child is removed from his or her
home, and once the child has been removed, it will be
more difficult to get custody restored. The American
Civil Liberties Union opposes this bill for precisely
this reason.
Did the system really fail in the Contra Costa County
case? The court refused to remove a child from the home
he'd been in for four years without giving the mother a
chance to explain herself. There was no indication that
the child had been abused by the boyfriend, nor any
indication that he was abused in the 22 days before the
full hearing. Didn't the judge make a decision in the
child's best interest based on the limited facts known?
Should one parent be able to take away a child from the
other parent without establishing that there was harm to
the child?
The California Judges Association opposes this bill
because it limits judicial discretion to determine what
is in the child's best interest. Faced with the
allegation, in an ex parte petition, of a sex offender in
the child's home, the court will be forced to remove the
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child without being able to consider the harms to the
child if he or she is moved. The court will not be able
to consider the stability of the placement the child is
currently in, the risks the child will face in the
custody of the other parent. What if the petitioning
parent has a history of abuse and drug or alcohol
problems that place the child at risk as well. Shouldn't
the court have the discretion to weigh all the
circumstances and determine what is in the child's best
interest before ordering a change in custody?
SHOULD THIS BILL BE AMENDED TO MAKE THE CHANGE IN CUSTODY
PERMISSIVE RATHER THAN REQUIRED OR TO ALLOW THE COURT TO
SET THE MATTER FOR A FULL HEARING BEFORE MAKING THE
CUSTODY MODIFICATION DETERMINATION?
Support: None Known
Opposition: American Civil Liberties Union; California
Judges Association
HISTORY
Source: Christine Callahan, Attorney at Law
Related Pending Legislation: SB 544 (Battin), would
prohibit registered sex offenders
from being granted custody or
unsupervised visitation with a child
under the age of 14, and would
require a finding of no risk to the
child before a sex offender could be
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granted custody or unsupervised
visitation with a child aged 14 to
18.
Prior Legislation: None Known
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