BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1674 (Ma)
As Amended May 10, 2012
Hearing Date: July 3, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Child Custody: Visitation
DESCRIPTION
Existing law permits courts to order supervised visitation if
necessary to protect a child. This bill would require courts,
in cases of abuse or neglect, to order supervised visitation by
a professional provider, unless the court makes a determination
that using a nonprofessional provider is in the best interest of
the child.
This bill would prohibit a professional or nonprofessional
provider from having a conflict of interest, as specified. This
bill would establish criteria for nonprofessional providers,
unless stipulated to by the parties or ordered by the court.
This bill would also establish criteria for professional
providers, including requirements that they receive 24 hours of
training, and create standards for documentation, as specified.
This bill would require professional and nonprofessional
providers to inform parties that no confidential privilege
exists, and that they are obligated to report all suspected
child abuse to the proper authorities.
BACKGROUND
The public policy of the State of California is to protect the
best interest of children who come before the court. In some
situations, a judge will order that a child only have contact
with a parent when a neutral third person is present. This is
known as supervised visitation and is ordered when a court feels
that the presence of a neutral party will protect the safety and
(more)
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well-being of the child.
The Judicial Council of California, as directed by the
Legislature, has developed standards of practice for supervised
visitation providers. These standards are found in the
California Standards of Judicial Administration which provides
in part:
Unless specified otherwise, the standards of practice are
designed to apply to all providers of supervised visitation,
whether the provider is a friend, relative, paid independent
contractor, employee, intern, or volunteer operating
independently or through a supervised visitation center or
agency. The goal of these standards of practice is to assure
the safety and welfare of the child, adults, and providers of
supervised visitation. Once safety is assured, the best
interest of the child is the paramount consideration at all
stages and particularly in deciding the manner in which
supervision is provided. Each court is encouraged to adopt
local court rules necessary to implement these standards of
practice. (Rule of Court, rule 5.20.)
The standards provide factors for courts to consider when
assessing the qualifications and training of a provider, as well
as safety concerns and conflicts of interests. This bill would
codify most of these existing Judicial Council guidelines for
providers of supervised visitation.
CHANGES TO EXISTING LAW
Existing law requires the Judicial Council to develop standards
for supervised visitation providers taking into consideration
the following:
the provider's qualifications, experience, and education;
safety and security procedures;
any conflict of interest;
maintenance and disclosure of records, including
confidentiality policies;
procedures for screening, delineation of terms and conditions,
and termination of supervised visitation services;
procedures for emergency or extenuating situations;
orientation to, and guidelines for, cases in which there are
allegations of domestic violence, child abuse, substance
abuse, or special circumstances; and
the legal obligations and responsibilities of supervisors.
(Fam. Code Sec. 3200.)
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Existing law requires any supervised visitation maintained or
imposed by the court to be administered in accordance with the
California Standards of Judicial Administration recommended by
the Judicial Council. (Fam. Code Sec. 3201.)
Existing rules of court set forth standards with which providers
of supervised visitation should comply. Existing rules of court
provide that the goal of these standards is to ensure the safety
and welfare of the child, adults, and providers of supervised
visitation. Once this safety is achieved, the best interest of
the child is the paramount consideration. These standards
include rules concerning qualifications of providers, required
training, safety and security measures, conflicts of interest,
confidentiality, and maintenance of records. (Rules of Court,
rule 5.20.)
This bill would require any standards for supervised visitation
providers adopted by the Judicial Council to conform to the
provisions of this bill.
This bill would prohibit the use of a nonprofessional provider
if the court has determined there is domestic violence, child
abuse, or neglect, as defined, unless the court makes a
determination that using a nonprofessional provider would be in
the best interest of the child.
This bill would create requirements, including the following,
for nonprofessional providers, unless stipulated by the parties
or ordered by the court:
be at least 21 years of age;
have no record of conviction for driving under the influence
in the past five years;
not have been on probation or parole or had a restraining
order in the past 10 years;
have no record of a conviction for child molestation, child
abuse, or other crimes against a person;
have proof of automobile insurance if transporting the child;
and
agree to, adhere to, and enforce the court order.
This bill would define a professional provider as any person
being paid for his or her supervised visitation services, and
require that all professional providers, in addition to the
requirements listed for nonprofessional providers above:
be able to speak the language of the party being supervised
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and of the child, or provide a neutral interpreter who is over
the age of 18;
receive at least 24 hours of training that includes training
in the following subjects:
o the role of a professional provider including the
legal responsibilities and obligations of a provider;
o child abuse reporting laws;
o recordkeeping procedures, screening, monitoring, and
termination of visitation;
o developmental needs of children;
o cultural sensitivity;
o conflicts of interest and confidentiality;
o issues relating to substance abuse, child abuse,
sexual abuse, and domestic violence;
o basic knowledge of juvenile and family law; and
Sign a declaration or Judicial Council form indicating that
the meet the training and qualifications of a provider.
This bill would limit the number of children per professional
provider based on the degree of risk factors, the nature of
supervision required, the number of people visiting the child,
and the experience of the provider in each case.
This bill would require that all providers (1) inform the
parties before visitation begins that no confidential privilege
exists, (2) that the provider is obligated to report suspected
child abuse, and (3) that the provider must suspend or terminate
the visit if the safety of the child becomes compromised. This
bill would require all providers to make reasonable efforts to
provide a safe environment for the child, and may terminate a
visit if the rules of the visit are violated or the child
becomes acutely distressed.
This bill would require professional providers to prepare a
written contract, with the terms and conditions of the
visitation, to be signed by the parties before the commencement
of visitation, and to keep a record, as specified, for each
case.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
Currently, there are no verification of completion of
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training requirements for providers of supervised child
visitation and safe exchange services in the state. In
California, the Judicial Council has adopted Standard 5.20 of
the California Standards of Judicial Administration, which
define standards of practice, including duties and
obligations for providers of supervised visitation under
Family Code section 3200. However, there is no state
regulatory agency that monitors a supervised visitation
provider's compliance with the 5.20 Standard.
The purpose of this bill is to ensure that supervised
visitation providers are complying with the 5.20 Standards to
ensure that visitation providers are properly trained and
certified in cases of domestic violence, child abuse, and
sexual abuse.
1.Required training, disclosure, and recordkeeping for
professional providers of supervised visitation
This bill would require professional providers of supervised
visitation to receive 24 hours of training which may include
study in a variety of areas. (See Changes to Existing Law.)
This bill would make the suggested criteria for professional
providers listed under current law mandatory, including that the
professional provider be at least 21 years of age and have a
clean criminal background, as specified. This bill would also
require professional providers to create a contract with the
terms and conditions of the supervised visitation, to keep a
record for each case, and interrupt or terminate the visit if
the child becomes acutely distressed or his or her safety is
compromised.
Under Rules of Court, a supervised visitation provider is a
professional if he or she is paid for the service. (Rules of
Court, rule 5.20(c)(2).) That minimum standard arguably lacks
the necessary protections to ensure that the provider can
adequately protect the well-being of the child. This bill seeks
to respond to the lack of criteria under existing law by
codifying specific responsibilities and obligations that a
professional provider must meet.
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2.Judicial discretion preserves flexibility in ordering
appropriate supervised visitation
This bill would require a court, in ordering supervised
visitation in cases involving abuse or neglect, to use a
professional provider, unless the court makes a determination
that using a nonprofessional is in the best interest of the
child. This language creates a strong preference for
professional providers, thereby limiting the authority of the
court to order nonprofessional providers to accommodate the
circumstances of individual families. Staff notes that to the
effect that this bill requires the use of a professional
provider, the result will be a cost that some parties may not be
able to afford.
Parties to custody actions bear the cost of professional
providers which may cost anywhere between $60 and $100 per hour.
For many families, the cost of this service is a significant
burden. In cases where a court orders supervised visitation by
a professional provider, and the parties are unable to cover the
cost, the result is that a child is unable to see his or her
parent. In opposition to this bill (unless amended) the
Executive Committee for the Family Law Section of the State Bar
of California (FLEXCOM) writes of concern "with the limits that
this bill imposes on the court's discretion in the use of
nonprofessional supervisors. �FLEXCOM] believes this bill would
lead to significant unintended consequences for parent-children
contact and relationships."
In addition, it is not evident that a professional provider is
necessarily superior to a nonprofessional provider for the
purposes of supervised visitation. Under existing law, a
provider becomes a professional merely because he or she is
paid. This bill would additionally require 24 hours of training
which may concern a variety of subjects and disciplines.
However, there is no reason to believe that an individual who
has undertaken a semester's worth of classes in recordkeeping,
cultural sensitivity, and child abuse reporting laws would be
any more adept at preventing violence or child abduction than a
person who has not had similar training.
In response to these concerns, the author offers the following
amendment, which would give the court more discretion in
creating a visitation order tailored to the unique needs of each
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family. Staff notes that this amendment would remove the
opposition of FLEXCOM.
Suggested amendment:
Page 2, line 8 strike "A nonprofessional provider shall not
be used in cases if"
Page 2, line 8, after "(b)" insert "In cases where the court
has determined there is domestic violence, or child abuse, or
neglect, as defined in Section 11165.6 of the Penal Code, and
supervision is necessary, the court shall consider whether to
use a professional or non-professional provider based upon
the child's best interest."
Page 2, strike lines 9 through 12, inclusive.
2.Conflict of interest provisions under this bill limit party's
ability to agree to particular nonprofessional providers
Existing law provides, that in order to avoid a conflict of
interest, a provider should not be financially dependent on the
person being supervised, be an employee of the person being
supervised, by affiliated with any superior court in the county
where supervision is ordered, or be in an intimate relationship
with the person being supervised. This bill would make these
considerations mandatory by providing that a provider shall not
have any of the conflicts described above.
Typically, when a court orders supervised visitation, whether
professional or nonprofessional, the parties agree on a
supervised visitation provider. The provider may be a family
friend, a relative, or another person who has an interest in the
child's well-being or a connection with the family. In effect,
by making the conflict of interest considerations under existing
law mandatory prohibitions, this bill would limit the
individuals that parties may agree to supervise visits. For
example, the provisions of this bill would prohibit any adult
living with the supervised parent, because that adult would be
considered financially dependent on the person being supervised.
As a result, grandparents or other adults living with the
parent requiring supervision, would be ineligible to act as a
supervised visitation provider.
As noted above, professional supervised visitation is
prohibitively expensive for many families, making
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nonprofessional providers essential. When parties are further
prohibited from using a willing adult because of a conflict of
interest, the risk that a child will be denied visitation with
his or her parent grows considerably. Arguably, when a child's
access to his or her parent is at risk, courts should be allowed
to evaluate whether an existing conflict of interest in a
potential provider would compromise the safety of a child. The
following amendment would maintain the discretionary language of
existing law, thereby enabling parties to agree to providers who
may have a conflict of interest, and courts to order supervised
visitation based on that agreement.
Suggested amendment:
On page 4, strike lines 22 - 34.
3.Additional amendments clarifying the qualifications of
professional and nonprofessional providers
The author offers the following amendments which further clarify
the role of a professional provider, and allow the court to use
discretion in choosing a nonprofessional provider.
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Author's amendments
Page 2, strike lines 19 - 22, inclusive.
Page 2, strike line 26 and 27.
Page 2, strike line 30.
Page 3, strike line 1.
Page 4, line 35 strike "All" and insert "Professional"
Support : California Communities United Institute; La Casa de
las Madres
Opposition : Association of Certified Family Law Specialists;
Association of Family Conciliation Courts; California
Partnership to End Domestic Violence
HISTORY
Source : California Association of Supervised Visitation Service
Providers
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 54, Noes 20)
Assembly Appropriations Committee (Ayes 14, Noes 1)
Assembly Judiciary Committee (Ayes 8, Noes 2)
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