BILL ANALYSIS
AB 375
Page 1
ASSEMBLY THIRD READING
AB 375 (Nielsen)
As Amended June 1, 2009
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Jones, Knight, | | |
| |Krekorian, Lieu, Monning, | | |
| |Nielsen | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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 :
1)Prohibits a court from making an ex parte order granting or
modifying a child custody order, unless there is a showing of
immediate harm to the child or immediate risk that the child
will be removed from California.
2)Provides that, unless there is a showing of immediate danger
to the health and safety of 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.
AB 375
Page 2
3)Requires, if all the circumstances in 2) a) - c) above apply,
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 or sexual
abuse are of recent origin or are part of a demonstrated and
continuing pattern of abuse.
FISCAL EFFECT : None
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
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
AB 375
Page 3
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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0001255