BILL ANALYSIS
SB 594
Page 1
SENATE THIRD READING
SB 594 (Torlakson)
As Amended August 15, 2005
Majority vote
SENATE VOTE :36-0
JUDICIARY 8-0
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|Ayes:|Jones, Harman, Goldberg, | | |
| |Haynes, Laird, Levine, | | |
| |Lieber, Montanez | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Expands the prohibition against allowing custody or
visitation to a registered sex offender to include individuals
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 Penal Code Section 290 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
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occurred since the order was entered:
a) The person granted custody or visitation is required to
register as a sex offender under Penal Code Section 290 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
Penal Code Section 290 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 Penal Code Section 290 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
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 a change
of custody or visitation based solely on the fact that the
child is allowed unsupervised contact with a person required
to register as a sex offender under Penal Code Section 290 for
a crime where the victim was a minor, cannot modify an
existing custody order without providing notice and an
opportunity to be heard to the other party.
6)Double joints the bill to AB 220 (Public Safety Committee) to
avoid chaptering out issues.
EXISTING LAW 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.
FISCAL EFFECT : None
COMMENTS : This bill seeks to protect children from unsupervised
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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, provided that
notice and an opportunity to be heard are provided to the other
party.
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 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
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.
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
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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 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 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
change of custody or visitation based solely on the fact that
the child is allowed unsupervised contact with a person required
to register as a sex offender under Penal Code Section 290 for a
crime where the victim was a minor, the court cannot modify an
existing custody order unless the other party was provided
notice and an opportunity to be heard. This amendment was taken
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.
California Attorneys for Criminal Justice oppose the bill,
contending that current laws are sufficient for courts to fully
consider and assess what is in the best interests of children.
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Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0011655