BILL ANALYSIS
AB 612
Page 1
ASSEMBLY THIRD READING
AB 612 (Beall)
As Amended May 5, 2009
Majority vote
JUDICIARY 9-0 APPROPRIATIONS 15-0
-----------------------------------------------------------------
|Ayes:|Feuer, Tran, Brownley, |Ayes:|De Leon, Nielsen, |
| |Evans, Jones, Krekorian, | |Ammiano, |
| |Lieu, Monning, Nielsen | |Charles Calderon, Davis, |
| | | |Duvall, Fuentes, Hall, |
| | | |Harkey, John A. Perez, |
| | | |Price, Skinner, Solorio, |
| | | |Audra Strickland, |
| | | |Torlakson |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
SUMMARY : Limits how a child's hostility toward a parent may be
used as evidence in a child custody case. Specifically, this
bill :
1)States legislative intent that courts strive to protect the
safety and best interests of children in custody matters by
ensuring that allegations of physical and sexual abuse are
investigated appropriately or referrals are made to the child
welfare services agency.
2)Provides that a child's expression of significant hostility
toward a parent may, in the discretion of the court, be
admitted as possible corroborating evidence that the parent
has abused the child. Prohibits a court from concluding that
an accusation of child physical or sexual abuse against a
parent is false based solely on the child's expression of
significant hostility toward the parent.
3)Provides that, on or after January 1, 2010, the provisions of
this section shall be included in all trainings required
pursuant to Family Code Section 3110.5.
EXISTING LAW :
1)States that the health, safety and welfare of children is the
AB 612
Page 2
court's primary concern when determining the best interests of
children for child custody and visitation orders.
2)Provides that, in determining the best interests of a child in
a child custody and visitation proceedings, the court shall
consider, among any other relevant factors, the health, safety
and welfare of the child, and any history of domestic abuse or
substance abuse by either parent.
3)Permits the court, in a contested child custody or visitation
proceeding where the court determines it is in the best
interests of the child, to appoint a child custody evaluator
to conduct a child custody evaluation. Provides that the
evaluation may be considered by the court. Provides that the
report may be received in evidence on stipulation of all
interested parties and is competent evidence on all matters
contained in the report.
4)Provides that no court may deny or limit custody or visitation
to a parent solely because that parent: a) lawfully reported
sexual abuse of the child; b) otherwise acted lawfully, based
on a reasonable belief, to determine if the child was a victim
of sexual abuse; or, c) sought mental health treatment for the
child based on suspected sexual abuse.
5)Allows a court to order supervised visitation if the court
finds substantial evidence that the parent, with the intent to
interfere with the other parent's contact with the child,
makes a report of child abuse which the parent knew was false
at the time it was made. Before imposing any such limitation
on visitation, the court must have determined that the
limitation is necessary to protect the health, safety and
welfare of the child and the court has considered the state's
policy of assuring that children have frequent and continuing
contact with both parents.
6)Establishes qualifications required of child custody
evaluators. Sets forth initial and continuing domestic
violence training for child custody mediators, investigators
and evaluators.
7)Where the court determines there is a serious allegation of
child sexual abuse, as defined, requires the child custody
evaluation to be conducted under specified rules.
AB 612
Page 3
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the costs for incorporating provisions of this bill
into existing court evaluator training are minor and would be
absorbable within existing resources.
COMMENTS : Family law judicial officers and counsel have long
testified in the Legislature that determining custody
arrangements that appear to be in the best interests of children
is one of the toughest jobs a court officer and an evaluator can
ever make. These decisions they state are extremely fact
intensive inquiries - each family situation and each child is
unique, and every judicial inquiry must consider those unique
situations, and have as much potential evidence before the court
as the court deems admissible and illuminating. However, they
note, judicial discretion in this area is not unfettered.
Courts are limited by the rules of evidence. Moreover, family
law statutes do provide some limits on the court's authority in
the form of various presumptions, but judges still have
discretion to rebut those presumptions if they are not in the
best interests of the child.
Children involved in custody disputes may have hostile feelings
toward one or both parents for many different reasons. A child
at the center of a bitter custody dispute may side with one
parent and want to spend time with that parent and not the
other. This strong desire to avoid one parent may, a family
court judge might conclude, be enhanced by the other parent's
bitter denouncements of that parent, or may be simply be how the
child feels regardless of that parent's alleged efforts to
alienate the child against the other parent. Alternatively, the
child may not want to spend time with one parent because that
parent makes the child do homework and chores, and the other
parent does not. At other end of this wide spectrum of possible
scenarios unique to each family, a child may have significant
hostility toward, and not want to spend any time with, a parent
because that parent has tragically sexually abused the child.
This bill specifies how certain evidence of a child's feelings
may be considered by courts and evaluators in child custody
matters. In particular, this bill provides that a child's
expression of significant hostility toward a parent may, in the
discretion of the court, be admitted as possible corroborating
evidence that the parent has abused the child. Thus, a child's
AB 612
Page 4
anger of his or her parent may be used to help prove that the
parent abused the child. The bill goes on to prohibit a court
from concluding that an accusation of child physical or sexual
abuse against a parent is false based solely on the child's
expression of significant hostility toward the parent. This
provision means that a child's anger toward a parent may not be
used, in and of itself, to disprove that the parent physically
or sexually abused the child. Additional evidence would be
required in that case.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0000866