BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2416 (Cook)
As Amended March 23, 2010
Hearing Date: June 10, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Child Custody: Parent on Active Military Duty
DESCRIPTION
This bill, sponsored by the American Retirees Association, would
establish procedures for the modification of child custody and
visitation orders for active duty military personnel.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
In 2003, 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.
The SCRA initially did not address how service members could
modify ongoing child support obligations. Based on concerns of
military personnel, the California Legislature enacted SB 1082
(more)
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(Morrow and Ducheny, Chapter 154, Statutes of 2005) to create an
expedited modification of child support orders for service
members who are deployed out-of-state. These provisions were
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. The SCRA was subsequently amended in 2008 to
specifically apply to child custody proceedings. (P.L. 110-181,
Div A, Title V, Subtitle H, Sec. 584(a).)
This bill seeks to additionally establish procedures for the
modification of child custody and visitation orders for active
duty military personnel who are deployed out-of-state.
CHANGES TO EXISTING LAW
Existing federal law 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. Existing law 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. Existing law 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 Sec. 522.)
Existing law 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. (Fam. Code Sec. 3047.)
Existing case law 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 Cal.4th 1072; In re Marriage of Burgess (1996) 13
Cal.4th 25.)
Existing law 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
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the rights of a birth parent or rights of the parents to
exercise parental authority. (Fam. Secs. 3101-04.)
Existing law provides a process for modification of child
support obligations for active duty military personnel. (Fam.
Sec. 3651(c).)
This bill would provide that, if a party with custody or
visitation receives temporary duty, deployment, or mobilization
orders from the military, as defined, which require that party
to move a substantial distance or otherwise has a material
effect on the party's ability to exercise custody or visitation
rights, the modification of an existing court order shall be
considered a temporary order.
This bill would provide that, if a temporary order is
established, there is a presumption that the order, upon review
by the court, 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.
This bill would provide that the court, in making a temporary
custody order shall consider any appropriate orders to ensure
that the relocating party can maintain frequent and continuing
contact with the child by means that are reasonably available.
This bill would allow the court, upon a motion by the deploying
military parent, to grant reasonable visitation rights to family
members if the court does all of the following: (1) finds that
there is a preexisting relationship between the family member
and child that has engendered a bond such that visitation is in
the best interest of the child; (2) finds that the visitation
will facilitate the child's contact with the relocating party;
and (3) balances the interest of the child in having visitation
with the family member against the right of the parents to
exercise their parental authority. This bill would not increase
the authority of these relatives to seek visitation orders
independently, and would not authorize the court to order such
visitation over the objections of a parent if it would violate
the fundamental rights of that parent. This bill would also
provide that such visitation orders will not impact the child
support calculation.
This bill would require 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
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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.
COMMENT
1. Stated need for the bill
According to the author, this bill seeks to create procedures to
protect the rights of parents who are deployed due to active
military duty in custody and visitation proceedings. The author
states that many deployed military parents are custodial parents
who should not have to be subject to an automatic renegotiation
of their custodial rights because of their deployment. The
author further states that this measure would facilitate
communication between deployed military parents and their
children, thereby helping to maintain familial bonds.
2. New procedures for the modification of child custody and
visitation orders for deployed active duty military personnel
(a) Review of temporary custody orders
This bill would establish procedures for the modification of
child custody and visitation orders when a party is deployed
out of state for military service that seek to protect the
rights of the deployed parent, while ensuring that the best
interest of the child are always paramount. First, the bill
would provide that if a party with custody or visitation
receives temporary duty, deployment, or mobilization orders
from the military, which require that party to move a
substantial distance or otherwise has a material effect on the
party's ability to exercise custody or visitation rights, the
modification of an existing court order shall be considered a
temporary order. When the parent returns and seeks review of
the temporary order, this bill would create a presumption that
the temporary order will revert back to the order in place
before the deployment, unless the court determines that is not
in the child's best interests.
Thus, for example, if a child was very young at the time of
deployment, a court would have discretion to allow the
returning parent's custodial time to increase gradually over a
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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, which would require an adjustment of the
prior custody order. This would provide the court with
sufficient discretion to ensure that custody and visitation
orders are always in the best interests of children.
(b) Contact between deployed parent and child
This bill would provide that the court, upon making a
temporary custody order, shall consider any appropriate orders
that would help the deploying parent maintain frequent and
continuing contact with the child during the deployment. This
would facilitate communication between deployed parents and
their children, which would arguably help maintain familial
bonds even through long deployment periods.
(c) Visitation with relatives during periods of military
deployment
Under current law, on petition to the court by a grandparent
of a minor child, the court may grant reasonable visitation
rights to the grandparent if the court: (1) finds that there
is a preexisting relationship between the grandparent and the
grandchild that has engendered a bond such that visitation is
in the best interest of the child; and (2) balances the
interest of the child in having visitation with the
grandparent against the right of the parents to exercise their
parental authority. (Fam. Code Sec. 3104.) This statute has
been upheld by the California Supreme Court as not infringing
upon the fundamental right of parents to make decisions
concerning the care, custody, and control of their children as
guaranteed by the Due Process Clause of the Fourteenth
Amendment. (In re Marriage of Harris (2004) 34 Cal. 4th 210,
230.)
Similarly, this bill would allow, upon the motion of the
deployed parent, the court to grant reasonable visitation
rights to family members if the court does all of the
following: (1) finds that there is a preexisting relationship
between the family member and child that has engendered a bond
such that visitation is in the best interest of the child; (2)
finds that the visitation will facilitate the child's contact
with the relocating party; and (3) balances the interest of
the child in having visitation with the family member against
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the right of the parents to exercise their parental authority.
Notably, this bill would not increase the authority of these
relatives to seek visitation orders independently, and would
not authorize the court to order such visitation over the
objections of a parent. Also, to ensure that any visitation
orders with relatives do not create confusion as to child
support obligations, this bill would specify that visitation
with relatives while a parent is deployed does not impact the
calculation of child support.
(d) Expedited hearings and participation by electronic means
In order to facilitate the presence, to the extent possible,
of parents in active military at custody and visitation
hearings, this bill would provide that the court may hold an
expedited hearing prior to the departure of the deploying
party if the party's deployment would materially affect his or
her ability to appear in person at a regularly scheduled
hearing. This bill would further provide that the court may
allow the deployed party to present evidence and testimony at
hearings, and participate in court-ordered custody mediation,
by electronic means, including, but not limited to, telephone,
video teleconferencing, or the Internet, as long as the
technology is reasonably available to the court and protects
the due process rights of all parties.
Support : Family Law Section of the State Bar; Fathers &
Families
Opposition : None Known
HISTORY
Source : American Retirees Association
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
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