BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1188|
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CONSENT
Bill No: SB 1188
Author: Wright (D)
Amended: 5/12/10
Vote: 21
SENATE BANKING, FINANCE, AND INS. COMMITTEE : 9-1, 4/7/10
AYES: Calderon, Cogdill, Correa, Cox, Florez, Kehoe,
Padilla, Price, Runner
NOES: Liu
NO VOTE RECORDED: Lowenthal
SENATE JUDICIARY COMMITTEE : 4-0, 5/4/10
AYES: Corbett, Harman, Hancock, Leno
NO VOTE RECORDED: Walters
SUBJECT : Child custody: disabled parent
SOURCE : Author
DIGEST : This bill provides that a parents 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.
ANALYSIS : Existing law:
1.Requires a court to award custody of a child according to
CONTINUED
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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.
2.Provides that a violation of an individual's rights under
the Americans with Disabilities Act (ADA) constitutes a
violation of state law.
Existing federal law, the 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.
This bill provides 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 provides 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.
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 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
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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.)
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
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impermissibly based its decision on the mother's physical
limitation of being confined to a wheelchair as a result of
a stroke.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/11/10)
American Retirees Association
AMVETS, Department of California
Association of Certified Family Law Specialists
Disability Rights California
Fathers and Families
ARGUMENTS IN SUPPORT : According to the author's office,
a parent's disability may often be 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.
JA:nl 5/12/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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