BILL ANALYSIS
SB 594
Page 1
Date of Hearing: June 7, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 594 (Torlakson) - As Amended: May 10, 2005
SENATE VOTE : 36-0
SUBJECT: Custody and Visitation: Sex Offenders
KEY ISSUE : SHOULD A PARENT BE DENIED CUSTODY OF, OR
UNSUPERVISED VISITATION WITH, A CHILD IF THAT PARENT LIVES WITH
A REGISTERED SEX OFFENDER UNLESS THE COURT FINDS THERE IS NO
SIGNIFICANT RISK TO THE CHILD?
SYNOPSIS
This bill seeks to protect children from unsupervised contact
with registered sex offenders by prohibiting 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. Additionally, it would create a
rebuttable presumption in custody proceedings that a child is at
significant risk if allowed unsupervised contact with a
registered sex offender. This bill would also allow, based on a
change of circumstances, for modification or termination of an
existing custody order if the person with custody or visitation
becomes a registered sex offender or begins living with a
registered sex offender and cannot overcome the presumption that
the child is at significant risk. Such a modification order
could be issued based on an ex parte motion, as long as notice
is provided to the other party.
The author states this bill is necessary to protect children
residing with registered sex offenders from "predatory practices
of child molesters and stop the cycle of sexual abuse from
continuing until adulthood." This bill is supported by the
Family Law Section of the State Bar. The California Judges
Association opposes the bill, arguing that it limits judicial
discretion to make custody decisions that are in the best
interest of the child.
SUMMARY : Expands the prohibition against allowing custody or
visitation to a registered sex offender to include individuals
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who reside with registered sex offenders. Specifically, this
bill :
1)States as findings that, among other things: (a) children are
at risk when permitted to remain in contact with a parent or
guardian who has committed a sex crime; (b) custody and
visitation orders must be made in a manner that ensures the
health, safety and welfare of the child; and (c) there is a
presumption, for purposes of juvenile court proceedings, that
a child is placed at substantial risk of abuse or neglect if a
parent, guardian or any person who lives with a parent or
guardian is required to register as a sex offender.
2)Provides that a person who resides with a person required to
register as a sex offender under Section 290 of the Penal Code
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.
3)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, unless the court finds that there is no
significant risk to the child and states so in writing or on
the record, if either of the following circumstances has
occurred since the order was entered:
a) The person granted custody or visitation is required to
register as a sex offender under Section 290 of the Penal
Code for a crime where the victim was a minor; or
b) The person granted custody or visitation lives with a
person who is required to register as a sex offender under
Section 290 of the Penal Code for a crime where the victim
was a minor.
4)Holds that, for purposes of establishing, modifying or
termination a custody or visitation order, the fact that a
child is permitted unsupervised contact with a person required
to register as a sex offender under Section 290 of the Penal
Code for a crime where the victim was a minor is prima facie
evidence that the child is at significant risk, and that prima
facie evidence constitutes a presumption affecting the burden
of proof. The presumption does not apply if there are factors
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mitigating against its application, including whether the
person seeking custody is also required to register as a sex
offender where the victim was a minor.
5)Requires that the court, in any ex parte petition for custody
change based solely on the fact that the child is allowed
unsupervised contact with a person required to register as a
sex offender under Section 290 of the Penal Code for a crime
where the victim was a minor, cannot modify an existing
custody order without providing notice to the other party.
EXISTING LAW :
1)Provides courts with the widest discretion to make custody
determinations that are in the best interest of the child.
(Family Code Section 3040.)
2)Provides that a person who is required to register as a sex
offender where the victim was a minor or has 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. (Family Code Section 3030.)
3)Provides that a court must refrain from making an ex parte
order modifying custody unless there is a showing of immediate
harm to the child. (Family Code Section 3064.)
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : This bill seeks to protect children from unsupervised
contact with registered sex offenders by prohibiting 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. Additionally, it would create
a rebuttable presumption in custody proceedings that a child is
at significant risk if allowed unsupervised contact with a
registered sex offender. This bill would also allow, based on a
change of circumstances, for modification or termination of an
existing custody order if the person with custody or visitation
becomes a registered sex offender or begins living with a
registered sex offender and cannot overcome the presumption that
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the child is at significant risk. Such a modification order
could be issued based on an ex parte motion, provided that
notice is provided to the other party.
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
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.
According to the bill's 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 keep him away from Sam, but Sally refused.
James sought, through an ex parte petition, a 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.
According to the author current law does not adequately address
the situation where a registered sex offender resides in the
home of a custodial parent. This bill is necessary to provide
"[g]reater protection for children who are at risk of harm by
registered sex offenders with prior offenses against children."
The sponsor contends that the danger to children is the same no
matter what the relationship of the sex offender is to the
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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.
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. 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 proof.
However, the presumption would not apply if there are mitigating
factors, including whether the parent seeking custody is also
required to register as a sex offender. Absent rebuttal, or
non-application, of the presumption, the court has no discretion
to consider the child's preferences, the relationship the child
has with the parents, or the risks the child might face if
placed with the other parent.
This bill would allow, on a change of circumstances, for
modification of existing custody orders unless the presumption
was rebutted and would permit ex parte motions in this
situation . 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, and there
is a change of circumstances that occurred since the order was
originally issued, unless the parent can rebut the presumption
that the child is at significant risk. The presumption would
not apply if there are mitigating factors, including whether the
parent seeking custody is also required to register as a sex
offender. If this presumption applies and is not rebutted, the
court has no choice but to modify custody. This provision of
the bill seeks to address the situation in which a custody order
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is established and only later does the parent with custody
becomes a registered sex offender or allows a sex offender to
move into the house.
This bill also provides that, in any ex parte petition for
custody change based solely on the fact that the child is
allowed unsupervised contact with a person required to register
as a sex offender under Section 290 of the Penal Code for a
crime where the victim was a minor, the court cannot modify an
existing custody order unless the other party was provided
notice. This amendment was taken in the Senate Judiciary
Committee to ensure that the other parent has an opportunity to
rebut the presumption. This requirement does not apply if there
is a showing of immediate harm to the child.
ARGUMENTS IN OPPOSITION : The California Judges Association
(CJA) opposes this bill because they contend 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, it is argued, will be
forced to remove the child without being able to consider the
harms to the child if he or she is moved if the other parent,
assuming he or she is present, cannot rebut the presumption or
show that it does not apply. CJA worries that the court will
not be able to consider the stability of the placement the child
is currently in or the risks the child will face in the custody
of the other parent. The petitioning parent may have a history
of abuse and drug or alcohol problems that place the child at
risk as well. CJA thus argues that the court should have the
widest discretion possible to weigh all the circumstances and
determine what is in the child's best interest before ordering a
change in custody.
Possible Amendments : While ex parte petitions require notice to
all parties no later than 10 a.m. on the day before the ex parte
appearance, that time may be shortened in exceptional
circumstances. (Rule of Court 379.) Therefore, it may help to
ensure that the other parent actually has a meaningful
opportunity to rebut the presumption to specifically require
that the other parent be given not just notice, but "an
opportunity to be heard." Additionally, since the presumption
applies not just to custody orders, but also to visitation
orders, the requirement to provide notice may need to apply not
just for custody orders, but also to visitation orders. The
Committee may wish to explore with the author whether these
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changes would be appropriate to ensure the other parent has
meaningful notice and an opportunity to rebut a presumption that
could amount to a complete loss of custody or visitation for
that parent.
Technical Amendment : There is a minor technical change required
in the bill:
Delete the word "or" on page 3, line 39.
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 granted custody or unsupervised visitation
with a child aged 14 to 18. This bill is in the Senate
Judiciary Committee and has not been heard.
REGISTERED SUPPORT / OPPOSITION :
Support
Family Law Section of the California State Bar
Opposition
California Attorneys for Criminal Justice
California Judges Association
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334