BILL ANALYSIS
AB 375
Page 1
Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 375 (Nielson) - As Amended: March 23, 2009
SUBJECT : Child custody: child sexual abuse
KEY ISSUE : SHOULD THE COURT BE PREVENTED FROM CHANGING CUSTODY
ORDERS EX PARTE WHERE THE PARTY REQUESTING THE CHANGE IS ALLEGED
TO HAVE PERPETRATED A RECENT OR CONTINUING ACT OF DOMESTIC
VIOLENCE OR SEXUAL ABUSE AGAINST THE CHILD?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to ensure that custody orders cannot be changed
quickly and without an open hearing when an abusive parent seeks
to gain greater access to the child. Existing law authorizes
the court to grant or modify a custody order on an ex parte
basis only when there is a showing of immediate risk that the
child will be removed from California or a showing of immediate
harm to the child. "Immediate harm to the child" is defined to
include having a parent who has committed acts of domestic
violence or sexual abuse of a child. This bill would prevent a
court from granting an ex parte request to modify a custody
order if the court makes a finding that the child in question is
a victim of domestic violence or sexual abuse that has occurred
within the last five years or is part of a demonstrated and
continuing or escalating pattern of abuse and the person seeking
to modify the order is alleged to have perpetrated the domestic
violence or sexual abuse against the child. The bill provides
the court with a small, but necessary, amount of discretion to
grant such an order if it is necessary to protect the child.
Supporters include the California Protective Parents Association
and the Center for Judicial Excellence. The earlier opposition
was to a previous version of the bill, which had eliminated all
judicial discretion.
SUMMARY : Limits the ability of the court to grant an ex parte
request to modify a child custody order in cases of domestic
violence or child sexual abuse. Specifically, this bill :
AB 375
Page 2
1)Provides that, unless there is a showing of immediate harm to
the child or immediate risk that the child will be removed
from the state, a court may not grant an ex parte request to
modify a child custody order if all of the following apply:
a) There is a finding of domestic violence or sexual abuse
against the child;
b) The court determines that the act of domestic violence
or sexual abuse is of recent origin or part of a
demonstrated and continuing or escalating pattern of acts
of domestic violence or sexual abuse against the child,
with "recent origin" defined as occurring within the last
five years; and
c) The modification request is made by a person who is
alleged to have perpetrated a recent act, or a pattern of
acts, of domestic violence or sexual abuse, and is alleged
to be seeking the modification to gain greater access to
the child.
2)If all the circumstances in #1(a) -(c) apply, requires the
court to conduct a hearing in open court regarding the
modification of the custody order.
EXISTING LAW provides that a court shall refrain from making an
order granting or modifying a custody order on an ex parte
basis, unless there has been a showing of immediate risk that
the child will be removed from the State of California, or a
showing of immediate harm to the child. Defines "immediate harm
to the child" to include having a parent who has committed acts
of domestic violence or sexual abuse of the child, where the
court determines that the acts of domestic violence sexual abuse
are of recent origin or are part of a demonstrated and
continuing pattern of abuse. (Family Code Section 3064.)
COMMENTS : An ex parte order generally refers to an order
granted at the request of one party, without the other parties
to the action present. Ex parte orders are an exception to the
basic rule of court procedure that both parties must be present
at any argument before the court. Ex parte matters are
temporary orders pending a formal hearing and generally only
ordered if quick action, often without notice to the other
party, is required in a given situation.
Under current law, courts are generally prohibited from granting
or modifying a custody order on an ex parte basis. However, the
AB 375
Page 3
court may proceed on an ex parte basis if there has been a
showing of immediate harm to the child or immediate risk that
the child will be removed from the state. These orders can be
warranted when, for example, a parent with visitation has
threatened to take the child outside California, in particular
to a country that will not recognize California's custody
orders. In this case, the court may need to act quickly without
giving the other parent notice, in order to prevent removal of
the child from the state.
This bill seeks to protect children from domestic violence and
sexual abuse by preventing a court from granting an ex parte
request to modify a custody order if (1) the court makes a
finding of domestic violence or sexual abuse against the child;
(2) the court determines that the act of domestic violence or
sexual abuse is of recent origin (within the last five years) or
part of a demonstrated and continuing or escalating pattern of
acts of domestic violence or sexual abuse against the child; and
(3) the modification request is made by a person who is alleged
to have perpetrated a recent act of domestic violence or sexual
abuse. If all of these circumstances exist, the court is
required, before modifying the order, to conduct a hearing in
open court.
The bill rightly provides the court with a small, but necessary,
amount of discretion to grant such an ex parte order if there is
immediate risk of harm to the child. While such a situation
would be extremely rare, it is possible to imagine scenarios
where an abusive parent alleges that the other parent has
committed acts of domestic violence or child abuse and is
thereby able to prevent the parent seeking to protect the child
from being able to do so. This is particularly necessary if the
abusive parent alleges the other parent has committed acts of
domestic violence or sexual abuse against the child in an effort
to remove the child from the court's jurisdiction. This bill
would provide the court with the ability to prevent such a
potentially dangerous outcome in appropriate cases.
ARGUMENTS IN SUPPORT : Supporters, including the California
Protective Parents Association and the Center for Judicial
Excellence, enthusiastically support the bill, noting that that
they "receive reports approximately monthly from distraught
parents in California who have lost custody to abusers in ex
parte hearings. The children are taken from their safe homes
and placed at risk." This bill, they argue, will prevent these
AB 375
Page 4
egregious situations.
Opposition to Previous Version of the Bill : Opponents to a
previous version of the bill were concerned that the bill
eliminated all judicial discretion in an area where court
discretion is already - and appropriately - quite limited and
its exercise may well be necessary to prevent serious harm to
the child, including the removal of the child outside the reach
of a California court.
Previous related legislation : AB 2960 (La Malfa), Chap. 64,
Stats. 2008, ensured that custody orders can be changed quickly
when there is a showing of sexual abuse of the child by
clarifying that a court can change a custody order on an ex
parte basis when a child is the victim of sexual abuse.
REGISTERED SUPPORT / OPPOSITION :
Support
California Protective Parents Association
Center for Judicial Excellence
Crime Victims United of California
Helen Vine Detox Center
Incest Survivors' Speakers Bureau of Yolo County
Marin City Golden Gate Village Resident Council
Mothers in Crisis Coalition
Women Helping All People
One individual
Opposition (to a previous version of the bill) :
California Judges Association
Family Law Section of the State Bar
One individual
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334