BILL ANALYSIS
AB 2416
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2416 (Cook)
As Amended July 15, 2010
Majority vote
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|ASSEMBLY: |71-0 |(April 12, |SENATE: |34-0 |(August 11, |
| | |2010) | | |2010) |
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Original Committee Reference: JUD.
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, mobilization or
temporary duty, 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, a court may grant reasonable visitation rights to 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, will help
facilitate contact with the deploying parent, and the court
properly balances the right of the child to visitation with
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the relative and the right of the parent to exercise parental
authority. However, does not increase the authority of these
relatives to seek visitation orders independently. 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.
The Senate amendments clarify that the court, when deciding
whether close relatives should be granted visitation during a
parent's deployment, should appropriately balance the right of
the child to visitation with the relative and the right of the
parent to exercise parental authority.
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.
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.)
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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
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.
5)Provides a process for modification of child support
obligations for active duty military personnel.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
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.
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.
Under current law, a final custody or visitation order may be
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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, 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 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, mobilization or temporary duty, 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
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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
easier on all parties.
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 requires the court to properly balance the right of
the child to visitation with the relative and the right of the
parent to exercise parental authority. 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0005411