BILL ANALYSIS �
AB 1807
Page 1
ASSEMBLY THIRD READING
AB 1807 (Cook)
As Amended March 29, 2012
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Gorell, Huber, | | |
| |Jones, Monning, | | |
| |Wieckowski, Bonnie | | |
| |Lowenthal | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Clarifies the law regarding modification of child
custody and visitation orders for active duty military
personnel. Specifically, this bill :
1)Provides that a court may not, as part of its review of the
temporary custody order changed as the result of a military
parent's deployment, upon return of the deploying party, order
a child custody evaluation unless the party opposing reversion
to the order prior to deployment makes a prima facie showing
that such reversion is not in the best interest of the child.
2)Provides that a relocation by the nondeploying parent during
the deployed parent's absence from the jurisdiction while a
temporary custody order is in effect shall not, by itself,
terminate the California court's exclusive and continuing
jurisdiction over the custody case.
3)States the intent of the Legislature that courts shall, to the
extent feasible within existing resources and court practices,
prioritize the calendaring of these reversion 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 appropriate access to their children.
EXISTING LAW :
1)Provides that, if a party with custody or visitation receives
temporary duty, deployment, or mobilization orders from the
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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.
Requires the court, in making the order, to consider any
appropriate means by which the deploying party can maintain
frequent and continuing contact with the child by whatever
means are available.
2)Provides that, if a temporary order is established pursuant to
1) above in EXISTING LAW, upon review of the order on return
of the deploying parent, there is a presumption that the order
shall revert back to the original order before the deployment,
unless the court determines that such a reversion is not in
the child's best interest.
3)Allows the court, upon a motion by the deploying military
parent, to 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
interest and will help facilitate contact with the deploying
parent.
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 arrangement between parents.
Two years ago, the author's AB 2416 (Cook), Chapter 466, of
Statutes 2010, created a process to protect custodial
arrangements when military parents are deployed in a way that
benefits both the parents and the child. This bill clarifies
those provisions to further protect service members and their
families.
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
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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.
In order to protect the custodial rights of military parents,
state laws were modified in 2005 and again in 2010. Under
current law, if a parent with custody or visitation receives
temporary duty, deployment, or mobilization orders from the
military, as defined, which require that parent to move a
substantial distance or otherwise have 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, there is
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 interest.
The presumption in current law 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. Existing law, 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 discretion to always ensure that custody
and visitation orders are in the best interests of children.
To prevent such unnecessary delays, this bill requires that a
court may not, as part of its review of the temporary custody
order changed as the result of a military parent's deployment,
upon return of the deploying party, order a child custody
evaluation unless the party opposing reversion makes a prima
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facie showing that such reversion is not in the best interest of
the child. A court may still order a child custody evaluation,
but not until the party opposing reversion of the order makes a
showing that such an order is not in the child's best interest.
Again, this ensures the best interests of children are
paramount, while still preventing unnecessary and costly delays.
In addition, in order to ensure that California courts retain
jurisdiction in cases, as appropriate under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), this bill
provides that a relocation by the nondeploying parent during the
deployed parent's absence from the jurisdiction while a
temporary custody order is in effect will not, by itself,
terminate the California court's exclusive and continuing
jurisdiction over the custody case. This should help ensure
that California courts do not lose jurisdiction when the
nondeploying parent, who has custody only under the temporary
order, temporarily moves out of state during the other parent's
deployment.
Finally, to help clarify that these reversion cases receive
appropriate priority in the family law courts, this bill states
the intent of the Legislature that courts shall, to the extent
feasible within existing resources and court practices,
prioritize the calendaring of these reversion 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 appropriate access to their children. This statement
recognizes the very real fiscal constraints under which courts
in California are now operating, but still directs the courts to
give these cases the priority they rightly deserve.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0003271