BILL ANALYSIS
AB 2416
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2416 (Cook) - As Amended: March 23, 2010
PROPOSED CONSENT
SUBJECT : Child Custody: Military Personnel
KEY ISSUE: SHOULD CHILD CUSTODY ORDERS, MODIFIED DUE TO ONE
PARENT'S MILITARY DEPLOYMENT, BE PRESUMED TO REVERT TO THE
ORIGINAL ORDER UPON THE PARENT'S RETURN, PROVIDED THAT IT IS IN
THE CHILD'S BEST INTERESTS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
The wars in Afghanistan and Iraq and the resulting military
deployments have significantly affected service members and
their families, sometimes causing considerable disruptions in
existing custody and visitations arrangements between parents.
This non-controversial bill, sponsored by the American Retirees
Association and supported by the Family Law Section of the State
Bar and Fathers & Families, protects custodial arrangements for
deploying parents in three ways. First if a parent with custody
or visitation receives a military deployment that requires that
parent to move a substantial distance or otherwise materially
affects his or her ability to exercise custody or visitation
rights, and the court modifies the custody or visitation order
accordingly, the modified order will be considered a temporary
order. When the parent returns and seeks review of the
temporary order, this bill creates a presumption that the
temporary order should revert back to the original order before
the deployment, unless the court determines that such a
reversion is not in the child's best interests. The presumption
in this bill correctly protects the rights of the deployed
parent, while ensuring the best interests of the child are
always paramount.
Second, this bill helps to maintain contact between the
deploying parent and the child by directing the court, upon
making a temporary order, to consider additional orders that
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help that parent maintain frequent and continuing contact with
the child during the deployment.
Finally, this bill allows for visitation with the child by close
relatives of a deployed parent if the visitation is in the
child's best interests and if it will help facilitate contact
with the deployed parent. However, consistent with the
constitutional right of parents to make decisions concerning the
care, custody, and control of their children, set forth by the
U.S. Supreme Court in Troxel v. Granville , the bill specifically
prevents a court from ordering visitation with relatives over
the objections of a fit parent.
SUMMARY : Provides for modification of child custody and
visitation orders for active duty military personnel to protect
the custodial rights of the deployed parent while ensuring the
best interests of the child are always paramount. Specifically,
this bill :
1)Provides that, if a party with custody or visitation receives
temporary duty, deployment, or mobilization orders from the
military, as defined, that requires that party to move a
substantial distance or otherwise has a material effect on the
party's ability to exercise custody or visitation rights, and
if the court modifies the custody order accordingly, the
modified order shall be considered a temporary order.
2)Provides that, if a temporary order is established pursuant to
#1, upon review of the order by the court there is a
presumption that the order shall revert back to the original
order before the military deployment, unless the court
determines that such a reversion is not in the child's best
interests.
3)Requires the court, in making an order pursuant to #1, to
consider any appropriate means by which the deploying party
can maintain frequent and continuing contact with the child by
whatever means are available.
4)Allows the court, upon a motion by the deploying military
parent, to order visitation with a stepparent, grandparent or
other family member with a preexisting close relationship with
the child, provided the visitation is in the child's best
interests and will help facilitate contact with the deploying
parent. However, does not increase the authority of these
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relatives to seek visitation orders independently. Moreover,
does not authorize the court to order such visitation over the
objections of a parent if it would violate the fundamental
rights of that parent. Provides, also, that such an order
will not impact the child support calculation.
5)Requires the court, if a party's military duty will have a
material effect on that party's ability to appear in person at
a regularly scheduled hearing, to, upon motion of the party,
(a) hold an expedited hearing to determine custody or
visitation issues prior to departure; or (b) allow the party
to present evidence, and participate in child custody
mediation, by electronic means, to the extent the technology
is reasonably available to the court and the due process
rights of all parties are protected.
EXISTING LAW :
1)Provides that a party's absence from the home or failure to
comply with a custody or visitation order may not, in and of
itself, justify a modification of the order if the reason for
the absence or failure is the party's activation to military
service and deployment out-of-state. (Family Code Section
3047. Unless stated otherwise, all further references are to
that code.)
2)Requires the court, upon application of a service member or on
its own motion, to grant a stay of 90 days or more in any
civil action or proceeding, including any custody proceeding,
at any time prior to final judgment if certain conditions are
satisfied. The application must set forth how the current
military duty requirements materially affect the service
member's ability to appear. Provides that, upon expiration of
the mandatory stay, the court may grant an additional stay,
upon application of the service member demonstrating that
continuing military duty will have a material affect on his or
her ability to appear. Requires the court, if it refuses to
grant the additional stay, to appoint counsel to represent the
service member. (Servicemembers Civil Relief Act, 50 U.S.C.
Appendix Section 522.)
3)Provides that a final custody or visitation order may be
modified by the court only if some significant change in
circumstances indicates that a different arrangement would be
in the child's best interest. ( Marriage of LaMusga (2004) 32
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Cal.4th 1072; In re Marriage of Burgess (1996) 13 Cal.4th 25.)
4)Generally allows the court to grant reasonable visitation to a
stepparent or grandparent if that visitation is in the best
interests of the child and does not conflict with the rights
of a birth parent or rights of the parents to exercise
parental authority. (Sections 3101-04.)
5)Provides a process for modification of child support
obligations for active duty military personnel. (Section
3651(c).)
COMMENTS : The wars in Afghanistan and Iraq and the resulting
military deployments have significantly affected service members
and their families, sometimes causing considerable disruptions
in existing custody and visitations arrangements between
parents. This non-controversial bill seeks, when parents are
deployed, to protect custodial arrangements in a way that
benefits both the parents and the child.
Military Personnel Protected by the Federal Servicemembers Civil
Relief Act : In 2003 and again in 2008, Congress updated the
former Soldiers' and Sailors' Civil Relief Act, and enacted the
new Servicemembers Civil Relief Act (SCRA), "to provide for,
strengthen, and expedite the national defense . . . to enable
[service members] to devote their entire energy to the defense
needs of the Nation; and to provide for the temporary suspension
of judicial and administrative proceedings and transactions that
may adversely affect the civil rights of servicemembers during
their military service." (50 U.S.C. Appendix Section 502.) The
SCRA, among other things, prohibits default actions against
service members deployed out of the United States, limits the
amount of interest that may be assessed on debts that accrued
prior to deployment, and requires a stay of proceedings if the
service member's military duty materially affects his or her
ability to appear.
California Law Modified in 2005 to Recognize Concerns of
Deployed Military Parents : Under current law, a final custody
or visitation order may be modified by the family court only if
some significant change in circumstances indicates that a
different arrangement would be in the child's best interest.
However, based on concerns of military personnel, the law was
modified in 2005 to provide that a party's absence from the home
or failure to comply with a custody or visitation order may not,
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in and of itself, justify a modification of that order if the
reason for the absence or failure is the party's activation to
military service and deployment out-of-state. This provision
was designed to prevent a parent from losing custody or
visitation with his or her child based solely on that parent's
out-of-state deployment.
This Bill Furthers Those Protections, While Ensuring that the
Best Interests of the Child are Always Paramount : This bill
takes these protections a step farther and provides that if a
parent with custody or visitation receives temporary duty,
deployment, or mobilization orders from the military, as those
terms are defined in the bill, that requires that parent to move
a substantial distance or otherwise has a material effect on his
or her ability to exercise custody or visitation rights, and the
court modifies the custody or visitation order accordingly, such
modified order will be considered a temporary order. When the
parent returns and seeks review of the temporary order, this
bill creates a presumption that the temporary order will revert
back to the original order before the deployment, unless the
court determines that such a reversion is not in the child's
best interests.
The presumption in this bill correctly protects the rights of
the deployed parent, while ensuring the best interests of the
child are always paramount. Thus, for example, if a child was
very young at the time of deployment, a court may allow the
deployed parent's custodial time to increase gradually over a
period of time, to allow the child to adjust to the revised
living arrangement. Alternatively, a returning parent may have
mental or physical health issues that affect his or her
parenting ability and require an adjustment of the prior custody
order. This bill, while making it clear that custodial orders
changed as the result of military deployment should revert to
the original order upon return of the deployed parent, provides
courts with sufficient discretion to ensure always that custody
and visitation orders are in the best interests of children.
This bill also helps to maintain contact between the deploying
parent and the child by directing the court, upon making a
temporary order, to consider additional orders that help the
deploying parent maintain frequent and continuing contact with
the child during the deployment by whatever means are available.
This will allow parents and children to maintain their bonds
even through long deployments and help make the return that much
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easier on all parties.
Visitation with Relatives During Periods of Military Deployment :
It has long been recognized that the "Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents
to make decisions concerning the care, custody, and control of
their children." (Troxel v. Granville (2000) 530 U.S. 57, 66.)
In order to accommodate grandparents who wish to petition for
visitation rights to their grandchildren, legislation has been
enacted that balances a grandparent's ability to petition for
visitation rights against the parents' right to make decisions
about the care, custody and control of their children. The
statute was upheld by the California Supreme Court as not
violating the parent's fundamental right over the custody, care
and control over their children. (In re Marriage of Harris
(2004) 34 Cal. 4th 210, 230.)
Consistent with the Troxel limitations, this bill allows for
visitation with the child by close relatives when a parent is
deployed. Under this bill, a court may, upon a motion by the
deploying parent, order visitation with a stepparent,
grandparent or other family member with a preexisting close
relationship with the child, provided the visitation is in the
child's best interests and will help facilitate contact with the
relocating parent. However, consistent with Troxel, the bill
specifically states that it does not increase the authority of
these relatives to seek visitation orders independently and it
does not authorize the court to order such visitation over the
objections of a fit parent. Also, to ensure that any such
visitation orders with relatives do not unnecessary open up
child support fights, the bill makes clear that visitation with
relatives while a parent is deployed does not impact the child
support calculation.
Prior Legislation : SB 1082 (Morrow and Ducheny), Chap. 154,
Stats. 2005, facilitated a process whereby deployed military
personnel can seek a modification of their child support orders.
REGISTERED SUPPORT / OPPOSITION :
Support
American Retirees Association (sponsor)
Family Law Section of the State Bar
Fathers & Families
AB 2416
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Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334