BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2416|
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THIRD READING
Bill No: AB 2416
Author: Cook (R)
Amended: 6/16/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/10/10
AYES: Corbett, Harman, Hancock, Leno, Walters
ASSEMBLY FLOOR : 71-0, 4/12/10 (Consent) - See last page
for vote
SUBJECT : Child custody: parent on active military duty
SOURCE : American Retirees Assoiciation
DIGEST : This bill establishes procedures for the
modification of child custody and visitation orders for
active duty military personnel.
ANALYSIS : 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
CONTINUED
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material affect on his/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.
(Family 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 the rights of a birth parent or rights of
the parents to exercise parental authority. (Family
Sections 3101-04.)
Existing law provides a process for modification of child
support obligations for active duty military personnel.
(Family Section 3651(c).)
This bill provides 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 provides 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
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determines that such a reversion is not in the child's best
interests.
This bill provides 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 allows 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 does not increase the
authority of these relatives to seek visitation orders
independently, and 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. This bill
also provides that such visitation orders will not impact
the child support calculation.
This bill 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/16/10)
American Retirees Association (source)
Family Law Section of the State Bar
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Fathers and Families
ARGUMENTS IN SUPPORT : According to the author's office,
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's office
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's office further states that this
bill will facilitate communication between deployed
military parents and their children, thereby helping to
maintain familial bonds.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Beall, Bill Berryhill, Tom
Berryhill, Blakeslee, Block, Blumenfield, Bradford,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,
Hagman, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,
Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Silva, Skinner, Solorio, Audra Strickland,
Swanson, Torres, Torrico, Tran, Villines, Yamada, John A.
Perez
NO VOTE RECORDED: Anderson, Bass, Evans, Hall, Harkey,
Norby, Smyth, Torlakson, Vacancy
RJG:do 6/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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