BILL NUMBER: AB 1807 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Cook
FEBRUARY 21, 2012
An act to amend Section 3047 of the Family Code, relating to child
custody.
LEGISLATIVE COUNSEL'S DIGEST
AB 1807, as amended, Cook. Family law: child custody.
Existing law provides that a party's absence, relocation, or
failure to comply with custody and visitation orders is not, by
itself, sufficient to justify modifying a custody or visitation order
if the party's absence, relocation, or failure is due to his or her
activation to military service, mobilization in support of combat or
other military operation, or military deployment out of state, as
defined. Existing law authorizes a court to issue a temporary order
for custody and visitation for the period in which the party will be
deployed, mobilized, or on temporary duty. Under existing law, there
is a presumption that, upon the return of that party, the order shall
revert back to the custody order that was in place before the
modification unless the reversion is not in the best interest of the
child.
This bill would require a military parent's motion to
revert back to a prior custody order to be given priority over other
custody or family law cases, except those cases that are already
entitled to priority. Additionally, this bill would permit the
presumption of reversion to the prior custody order to be rebutted.
This bill would require a party opposing reversion to the prior
custody order to make or allege a prima facie case that the reversion
would not be in the child's best interest. If the opposing party
does not present a prima facie case, this bill would require the
court to reestablish and revert to the prior custody order in place
before the deployment. Under this bill , after the
deploying party returns from deployment, prohibit the court from
ordering a child custody evaluation as part of its review of a
temporary order unless the party opposing reversion to the prior
custody order makes a prima facie showing that reversion would not be
in the child's best interest. Further, the bill would provide that
neither a child's absence from the state during a parent's
deployment nor a nondeploying parent's relocation during a parent's
deployment while a temporary modification order is in effect would
terminate the family court's jurisdiction for later custody
modifications. This bill would also prohibit a parent's deployment
from being used as a basis for asserting that the state court is an
inconvenient forum for custody orders. The bill would
additionally express the intent of the Legislature that
family courts, to the extent feasible given existing resources and
court practices, prioritize and expedite child custody cases when a
military parent is deployed or returns from deployment.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3047 of the Family Code is amended to read:
3047. (a) A party's absence, relocation, or failure to comply
with custody and visitation orders shall not, by itself, be
sufficient to justify a modification of a custody or visitation order
if the reason for the absence, relocation, or failure to comply is
the party's activation to military duty or temporary duty,
mobilization in support of combat or other military operation, or
military deployment out of state.
(b) (1) If a party with sole or joint physical custody or
visitation receives temporary duty, deployment, or mobilization
orders from the military that require the party to move a substantial
distance from his or her residence or otherwise has a material
effect on the ability of the party to exercise custody or visitation
rights, any necessary modification of the existing custody order
shall be deemed a temporary custody order made without prejudice,
which shall be subject to review and reconsideration upon the return
of the party from military deployment, mobilization, or temporary
duty.
(2) If the temporary order is reviewed upon return of the party
from military deployment, mobilization, or temporary duty, there
shall be a rebuttable presumption that the custody
order shall revert to the order that was in place before the
modification, unless the court promptly determines
that it is not in the best interest of the child. In
determining that reversion is not in the best interest of the child,
the party opposing the reversion must make or allege a prima facie
case that the court determines may, if timely and proven, overcome
the rebuttable presumption. If no prima facie case is presented, the
court shall reestablish and revert back to the prior orders that were
in place before the deployment of a military parent. No evidentiary
hearing is required if the facts presented by the opposing party do
not raise a significant issue or issues as to the military parent's
right to revert back to the prior orders. The court
shall not, as part of its review of the temporary order upon return
of the deploying party, order a child custody evaluation under
Section 3111 of this code or Section 730 of the Evidence Code, unless
the party opposing reversion of the order makes a prima facie
showing that reversion is not in the best interest of the child.
(3) A motion by a military parent to revert back to the prior
custody order shall be given priority over all other custody and
family law matters except those that are already entitled to priority
under existing law. The military parent shall not be penalized or
punished upon return from deployment by any delay or dilatory tactics
by the other parent or party or by the court.
(4)
(3) (A) If the court makes a temporary custody order,
it 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.
(B) Upon a motion by the relocating party, the court may grant
reasonable visitation rights to a stepparent, grandparent, or other
family member if the court does all of the following:
(i) Finds that there is a preexisting relationship between the
family member and the child that has engendered a bond such that
visitation is in the best interest of the child.
(ii) Finds that the visitation will facilitate the child's contact
with the relocating party.
(iii) Balances the interest of the child in having visitation with
the family member against the right of the parents to exercise
parental authority.
(C) Nothing in this paragraph shall increase the authority of the
persons described in subparagraph (B) to seek visitation orders
independently.
(D) The granting of visitation rights to a nonparent pursuant to
subparagraph (B) shall not impact the calculation of child support.
(c) If a party's deployment, mobilization, or temporary duty will
have a material effect on his or her ability, or anticipated ability,
to appear in person at a regularly scheduled hearing, the court
shall do either of the following:
(1) Upon motion of the party, hold an expedited hearing to
determine custody and visitation issues prior to the departure of the
party.
(2) Upon motion of the party, allow the party to present testimony
and evidence and participate in court-ordered child custody
mediation by electronic means, including, but not limited to,
telephone, video teleconferencing, or the Internet, to the extent
that this technology is reasonably available to the court and
protects the due process rights of all parties.
(d) A relocation by a nondeploying parent during a period of a
deployed parent's absence while a temporary modification order for a
parenting plan is in effect shall not , by itself,
terminate the exclusive and continuing jurisdiction of the court for
purposes of later determining custody or parenting time under this
chapter.
(e) When a court of this state has issued a custody or visitation
order, the absence of a child from this state during the deployment
of a parent shall be considered a "temporary absence" for purposes of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)), and the court shall retain exclusive
continuing jurisdiction under Section 3422.
(f) The deployment of a parent shall not be used as a basis to
assert inconvenience of the forum under Section 3247.
(g) For purposes of this section, the following terms have the
following meanings:
(1) "Deployment" means the temporary transfer of a member of the
Armed Forces in active-duty status in support of combat or some other
military operation.
(2) "Mobilization" means the transfer of a member of the National
Guard or Military Reserve to extended active-duty status, but does
not include National Guard or Military Reserve annual training.
(3) "Temporary duty" means the transfer of a service member from
one military base to a different location, usually another base, for
a limited period of time to accomplish training or to assist in the
performance of a noncombat mission.
(h) It is the intent of the Legislature that this section provide
a fair, efficient, and expeditious process to resolve child custody
and visitation issues when a party receives temporary duty,
deployment, or mobilization orders from the military , as well
as at the time that the party returns from service and files a motion
to revert back to the custody order in place before the deployment.
The Legislature intends that family courts shall, to the extent
feasible within existing resources and court practices, prioritize
the calendaring of these cases, avoid unnecessary delay or
continuances, and ensure that parties who serve in the military are
not penalized for their service by a delay in appropriat e
access to their children .