BILL NUMBER: AB 1261	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Audra Strickland

                        FEBRUARY 27, 2009

   An act to amend Sections 3030 and 3030.5 of the Family Code,
relating to child custody.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1261, as introduced, Audra Strickland. Child custody and
visitation: registered sex offenders.
   Existing law provides that no person shall be granted physical or
legal custody of, or unsupervised visitation with, a child if the
person is required to be registered as a sex offender under the Sex
Offender Registration Act, if the victim was a minor, or if the
person has been convicted under specified other criminal provisions,
including injuring or molesting a child, unless the court finds that
there is no significant risk to the child and states its reasons in
writing or on the record. In addition, no person may be granted
physical or legal custody of, or unsupervised visitation with, a
child if anyone residing in the person's household is required, as a
result of a felony conviction in which the victim was a minor, to be
registered as a sex offender, unless the court finds that there is no
significant risk to the child and states its reasons in writing or
on the record. Existing law also provides that the child may not be
placed in a home in which a person described above resides, nor
permitted to have unsupervised visitation with that person, unless
the court states the reasons for its findings in writing or on the
record. Existing law authorizes, 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, to be modified or terminated
if the circumstances described above have arisen, as specified, since
the order was entered, unless the court finds that there is no
significant risk to the child and states its reasons in writing or on
the record.
   This bill would delete the court's discretion in the cases
described above, thereby prohibiting the court from granting a person
physical or legal custody of, or unsupervised visitation with, a
child if the person is a registered sex offender or has been
convicted of specified criminal offenses, and prohibiting the court
from placing the child in a home in which that person resides. The
bill would also make conforming changes.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 3030 of the Family Code is amended to read:
   3030.  (a) (1) No person shall be granted physical or legal
custody of, or unsupervised visitation with, a child if the person is
required to be registered as a sex offender under Section 290 of the
Penal Code where the victim was a minor, or if the person has been
convicted under Section 273a, 273d, or 647.6 of the Penal Code
 , unless the court finds that there is no significant risk
to the child and states its reasons in writing or on the record
 . The child may not be placed in a home in which that
person resides, nor permitted to have unsupervised visitation with
that person  , unless the court states the reasons for its
findings in writing or on the record  .
   (2) No person shall be granted physical or legal custody of, or
unsupervised visitation with, a child if anyone residing in the
person's household is required, as a result of a felony conviction in
which the victim was a minor, to register as a sex offender under
Section 290 of the Penal Code  , unless the court finds there
is no significant risk to the child and states its reasons in
writing or on the record  . The child may not be placed in a
home in which that person resides, nor permitted to have
unsupervised visitation with that person  , unless the court
states the reasons for its findings in writing or on the record
 . 
   (3) The fact that a child is permitted unsupervised contact with a
person who is required, as a result of a felony conviction in which
the victim was a minor, to be registered as a sex offender under
Section 290 of the Penal Code, shall be prima facie evidence that the
child is at significant risk. When making a determination regarding
significant risk to the child, the prima facie evidence shall
constitute a presumption affecting the burden of producing evidence.
However, this presumption shall not apply if there are factors
mitigating against its application, including whether the party
seeking custody or visitation is also required, as the result of a
felony conviction in which the victim was a minor, to register as a
sex offender under Section 290 of the Penal Code. 
   (b) No person shall be granted custody of, or visitation with, a
child if the person has been convicted under Section 261 of the Penal
Code and the child was conceived as a result of that violation.
   (c) No person shall be granted custody of, or unsupervised
visitation with, a child if the person has been convicted of murder
in the first degree, as defined in Section 189 of the Penal Code, and
the victim of the murder was the other parent of the child who is
the subject of the order, unless the court finds that there is no
risk to the child's health, safety, and welfare, and states the
reasons for its finding in writing or on the record. In making its
finding, the court may consider, among other things, the following:
   (1) The wishes of the child, if the child is of sufficient age and
capacity to reason so as to form an intelligent preference.
   (2) Credible evidence that the convicted parent was a victim of
abuse, as defined in Section 6203, committed by the deceased parent.
That evidence may include, but is not limited to, written reports by
law enforcement agencies, child protective services or other social
welfare agencies, courts, medical facilities, or other public
agencies or private nonprofit organizations providing services to
victims of domestic abuse.
   (3) Testimony of an expert witness, qualified under Section 1107
of the Evidence Code, that the convicted parent experiences intimate
partner battering.
   Unless and until a custody or visitation order is issued pursuant
to this subdivision, no person shall permit or cause the child to
visit or remain in the custody of the convicted parent without the
consent of the child's custodian or legal guardian.
   (d) The court may order child support that is to be paid by a
person subject to subdivision (a), (b), or (c) to be paid through the
local child support agency, as authorized by Section 4573 of the
Family Code and Division 17 (commencing with Section 17000) of this
code.
   (e) The court shall not disclose, or cause to be disclosed, the
custodial parent's place of residence, place of employment, or the
child's school, unless the court finds that the disclosure would be
in the best interest of the child.
  SEC. 2.  Section 3030.5 of the Family Code is amended to read:
   3030.5.   (a)    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 
 shall  be  modified or  terminated if
either of the following circumstances has occurred since the order
was entered  , unless the court finds that there is no
significant risk to the child and states its reasons in writing or on
the record  : 
   (1) 
    (a)  The person who has been granted physical or legal
custody of, or unsupervised visitation with the child is required, as
a result of a felony conviction in which the victim was a minor, to
be registered as a sex offender under Section 290 of the Penal Code.

   (2) 
    (b)  The person who has been granted physical or legal
custody of, or unsupervised visitation with, the child resides with
another person who is required, as a result of a felony conviction in
which the victim was a minor, to be registered as a sex offender
under Section 290 of the Penal Code. 
   (b) The fact that a child is permitted unsupervised contact with a
person who is required, as a result of a felony conviction in which
the victim was a minor, to be registered as a sex offender under
Section 290 of the Penal Code, shall be prima facie evidence that the
child is at significant risk. When making a determination regarding
significant risk to the child, the prima facie evidence shall
constitute a presumption affecting the burden of producing evidence.
However, this presumption shall not apply if there are factors
mitigating against its application, including whether the party
seeking custody or visitation is also required, as the result of a
felony conviction in which the victim was a minor, to register as a
sex offender under Section 290 of the Penal Code.  
   (c) The court shall not modify an existing custody or visitation
order upon the ex parte petition of one party pursuant to this
section without providing notice to the other party and an
opportunity to be heard. This notice provision applies only when the
motion for custody or visitation change is based solely on the fact
that the child is allowed unsupervised contact with a person
required, as a result of a felony conviction in which the victim was
a minor, to register as a sex offender under Section 290 of the Penal
Code and does not affect the court's ability to remove a child upon
an ex parte motion when there is a showing of immediate harm to the
child.