BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1188 (Wright)
As Amended April 22, 2010
Hearing Date: May 4, 2010
Fiscal: No
Urgency: No
KB
SUBJECT
Child Custody: Disabled Parent
DESCRIPTION
This bill would provide that a parent's disability may not form
the basis for an order granting child custody or visitation to
another party, or for an order imposing a condition or
limitation on custody or visitation, unless the court makes a
finding that the award of custody or visitation to the disabled
parent would not be in the best interest of the child.
BACKGROUND
Since 1969, persons with disabilities have been protected under
Civil Code
Sections 54 and 54.1, which entitle individuals with
disabilities and medical conditions to full and free access to
and use of roadways, sidewalks, buildings and facilities open to
the public, hospitals and medical facilities, and housing.
After Congress enacted the Americans with Disabilities Act (ADA)
in 1990 (42 U.S.C. Section 12181), the state made a violation of
the ADA also a violation of Section 54 or 54.1. The state
protections provided to individuals with disability are
independent of, and comparatively higher than those provided
under the ADA.
In the context of child custody proceedings, case law has long
held that a judge may not simply rely on a parent's physical
disabilities as prima facie evidence of a parent's unfitness as
a parent. (In re Marriage of Carney (1979) 24 Cal.3d 725, 736.)
This bill would, consistent with existing case law, provide
(more)
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that a parent's disability may not form the basis for an order
granting child custody or visitation to another party, unless
the court makes a finding that the award of custody or
visitation to the disabled parent would not be in the best
interest of the child.
CHANGES TO EXISTING LAW
Existing law requires a court to award custody of a child
according to the child's best interest. Existing law further
requires a court, when determining the best interest of the
child, to consider the health, safety, and welfare of the child,
among other factors.
(Fam. Code Secs. 3011; 3020; 3040.)
Existing federal law , the Americans with Disabilities Act (ADA),
provides that no individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any
person who owns, leases, or leases to, or operates a place of
public accommodation. (42 U.S.C. Sec. 12181.)
Existing law provides that a violation of an individual's rights
under the ADA constitutes a violation of state law. (Civ. Code
Sec. 54.)
This bill would provide that a parent's disability may not form
the basis for an order granting child custody or visitation to
another party, or for an order imposing a condition or
limitation on custody or visitation, unless the court makes a
finding that the award of custody to the disabled parent would
not be in the best interest of the child.
This bill would provide that it applies to any proceeding
regarding custody or visitation, including, but not limited to,
a request for modification of an existing order for custody or
visitation.
COMMENT
1. Stated need for the bill
According to the author, a parent's disability may often be
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raised as an issue in proceedings pertaining to child custody
and visitation. The author asserts that many, if not most,
disabled parents are fully capable of parenting their children,
and that a disability, by and of itself, should not be used
against a disabled parent by a court when determining custody
and visitation.
2. Bill would codify existing case law
In In re Marriage of Carney, the California Supreme Court held
that a trial court had abused its discretion in ordering that
custody of two children be transferred to the mother because the
father's physical disability would prevent a "normal father-son"
relationship. The father had had sole custody of the children
for nearly five years, during which the mother did not visit or
make any contribution to their support. The mother moved for
an order awarding her custody of both children after a jeep
accident left the father in quadriplegic condition. The trial
court regarded the father's physical disability as prima facie
evidence of his unfitness as a parent, and indicated that there
could be no "normal" relationship between the father and his
sons because he could not engage in physical sporting
activities. (Id. at 736-737.) The California Supreme Court, in
condemning this rationale as stereotyping, stated that a trial
court should inquire into a person's actual and potential
physical capabilities, learn how he or she has adapted to the
disability and manages its problems, consider how the other
members of the household have adjusted to it, and take into
account the special contributions the person may make to the
family despite, or even because of, the disability. (Id.)
Weighing these and other relevant factors, the Court stated that
the trial court should then carefully determine whether the
parent's condition will in fact have a substantial and lasting
adverse effect on the best interests of the child. (Id.)
Following the holding in Carney, the court in In re Marriage of
Levin (1980) 102 Cal.App.3d 981, held that the physically
disabled mother of a five year-old child was entitled to a new
custody hearing since the trial court had based its award of
permanent custody to the father on the limitations that the
mother's disability would impose on the most "normal" possible
life for the child. Although the trial court appeared to have a
sound basis on which to award custody to the father (the child
had been in the father's custody for most of her life), the
trial court had impermissibly based its decision on the mother's
physical limitation of being confined to a wheelchair as a
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result of a stroke.
This bill would provide that a parent's disability may not form
the basis for an order granting child custody or visitation to
another party, or for an order imposing a condition or
limitation on custody or visitation, unless the court makes a
finding that the award of custody or visitation to the disabled
parent would not be in the best interest of the child. Thus, a
trial court would not be permitted to simply rely on a parent's
disabilities as prima facie evidence that the parent is unfit to
care for a child, or that an award of custody in the disabled
parent's favor would not be in the best interest of the child.
Instead, as described in Carney, a court would be required to
assess the situation as a whole and weigh all relevant factors
in making its determination. If, after a careful consideration
of all relevant factors, a court makes a finding that an award
of custody or visitation to the disabled parent would not be in
the best interest of the child, then the court may make orders
accordingly. This process is essentially what the California
Supreme Court articulated in Carney, and would ensure that
courts are making decisions consistent with the best interest of
the child, and not solely on the fact that a parent possesses a
disability.
3. Suggested Amendment
This bill provides that a disability is as defined by the
Americans with Disabilities Act of 1990. However, as previously
stated, state law provides protection for individuals with
disabilities independent from those in the ADA. Even prior to
the ADA's passage, state law has always afforded additional
protections. Thus, this Committee may wish to consider whether
this bill should be amended to instead cross-reference the
definition of "disability" currently codified in the Unruh Civil
Rights Act.
Suggested amendment :
On page 2, line 4, strike "as defined by the American
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.)"
On page 2, line 19, after the period insert: "For the purposes
of this section, 'disability' means any mental or physical
disability as defined in Civil Code Section 51."
Support : Association of Certified Family Law Specialists (if
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amended);Association of Family Conciliation Courts (if amended);
Disability Rights California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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