BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1807 (Cook)
As Amended April 23, 2012
Hearing Date: June 12, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Family Law: Child Custody
DESCRIPTION
Existing law provides that upon return from deployment, any
temporary custody order issued during the deployment reverts
back to the order prior to the deployment unless a reversion is
not in the child's best interest. In any contested proceeding a
court may order a child custody evaluation in order to better
assess what custody arrangement will be in the best interest of
the child. An evaluation may include interviews with the
parents, child or other significant persons, observation, or the
collection of relevant corroborating information. This bill
would provide that a court may not order a child custody
evaluation unless the party opposing the reversion of the
custody order makes a prima facie showing that such reversion is
not in the best interest of the child.
This bill would also provide that neither a child's absence from
the state nor the non-deploying party's relocation during a
parent's deployment would terminate the family court's
jurisdiction for later custody modifications.
This bill would also state the legislative intent that courts
prioritize family law cases with a servicemember parent to
ensure that parties who serve in the military are not penalized
for their service by a delay in appropriate access to their
children.
BACKGROUND
(more)
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In 2003, 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 �servicemembers] 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 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 servicemembers
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 servicemember's
military duty materially affects his or her ability to appear.
The SCRA did not address how servicemembers could modify ongoing
child support obligations. Based on concerns of military
personnel, the California Legislature enacted SB 1082 (Morrow
and Ducheny, Chapter 154, Statutes of 2005) to create an
expedited modification of child support orders for
servicemembers who are deployed out-of-state. These provisions
were designed to prevent a parent from losing custody or
visitation with his or her child based solely on that parent's
out-of-state deployment.
AB 2416 (Cook, Chapter 466, Statutes of 2010) further added to
the protections for servicemember parents established by SB 1082
by providing that the modification of an existing court order
while a parent is deployed must be considered a temporary order.
That bill also created a presumption that these temporary
orders wiservicememberll revert back to the order in place
before the deployment upon a servicemember parent's return,
unless the court determines that is not in the child's best
interests.
The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
governs interstate child custody disputes and provides
uniformity between courts in different states. The UCCJEA was
introduced in 1997 and has been adopted by 49 states. The act
vests exclusive and continuing jurisdiction for child custody
litigation in the courts of the child's "home state," which is
defined as the state where the child has lived with a parent for
six consecutive months prior to the commencement of the
proceeding. A court will maintain continuing jurisdiction over
the custody or visitation order until that court determines that
neither the child nor the child's parents have a significant
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connection with the state that made the original order, or a
court determines that the child and the child's parents do not
presently reside in the state that initially made the child
custody order. (Fam. Code Sec. 3400 et seq.)
In an effort to protect the interests of servicemember parents
and comply with the UCCJEA, Arizona, Georgia and Louisiana have
all enacted laws which provide that the state issuing the
initial custody order shall remain the home state, with
exclusive and continuing jurisdiction, until the deployment of
the servicemember parent ends. (A.R.S. Sec. 25-1013; O.C.G.A.
Sec. 19-9-3; La. R.S. 9:359.11)
This bill seeks to establish procedures and standards relating
to the reversion of temporary child custody and visitation
orders for families with a servicemember parent who has returned
from out-of-state deployment. Specifically, this bill would
require that the party opposing the reversion of the custody
order provide evidence that the reversion would not be in the
best interest of the child before a court may order a custody
evaluation. This bill would also provide that during a
servicemember parent's deployment, the relocation of the
nondeploying parent and child would not terminate the family
court's jurisdiction for later custody modifications.
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CHANGES TO EXISTING LAW
Existing federal law requires the court, upon application of a
servicemember or on its own motion, to grant a stay of 90 days
or more in any civil action or proceeding, including any custody
proceeding, at any time prior to final judgment if certain
conditions are satisfied. The application must set forth how
the current military duty requirements materially affect the
service member's ability to appear. Existing federal law
provides that, upon expiration of the mandatory stay, the court
may grant an additional stay, upon application of the
servicemember demonstrating that continuing military duty will
have a material effect on his or her ability to appear.
Existing federal law requires the court, if it refuses to grant
the additional stay, to appoint counsel to represent the
servicemember. (Servicemembers Civil Relief Act, 50 U.S.C.
Appendix Sec. 522.)
Existing law provides that if a party with custody or visitation
receives temporary duty, deployment, or mobilization orders from
the military that require the party to move a substantial
distance or has a material effect on the party's ability to
exercise custody or visitation rights, and the court modifies
the custody order accordingly, the modified order shall be
considered a temporary order. Existing law 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. (Fam. Code Sec. 3047.)
Existing law provides that in determining the best interest of a
child in a dissolution or custody proceeding, the court must
consider, among other factors it finds relevant:
the health, safety, and welfare of the child;
any history of abuse by one parent to the other parent or any
child, as specified;
the nature and amount of contact with both parents; and
the habitual or continual illegal use of controlled
substances, or the habitual or continual abuse of alcohol by
either parent. (Fam. Code Sec. 3011.)
Existing law provides that, if a temporary custody order is
established pursuant to a servicemember's deployment, upon the
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. (Fam. Code Sec. 3047.)
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Existing law establishes the Uniform Child Custody Jurisdiction
Enforcement Act (UCCJEA) (Fam. Code Sec. 3400 et seq.)
Existing law provides that in any contested proceeding
involving child custody or visitation rights, the court may
appoint a child custody evaluator to conduct a child custody
evaluation in cases where the court determines it is in the best
interests of the child. (Fam. Code Sec. 3111.)
Existing case law provides that a final custody or visitation
order may be modified by the court only if some significant
change in circumstances indicates that a different arrangement
would be essential to the child's welfare. (Marriage of LaMusga
(2004) 32 Cal.4th 1072; In re Marriage of Burgess (1996) 13
Cal.4th 25.)
This bill would prohibit a 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.
This bill would provide that a child's absence from the state
during a parent's deployment would not terminate the family
court's jurisdiction for later custody modifications.
This bill would prohibit a parent's deployment from being used
as the sole basis for asserting that the state court is an
inconvenient forum for custody orders.
This bill would state the intent of the Legislature that family
courts, to the extent feasible, prioritize and expedite child
custody cases when a military parent is deployed or returns from
deployment.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
Since the passage of AB 2416 (Cook, 2010), it has come to the
author's attention that the legislative intent to make
custodial reversion a fair, efficient and expeditious process
is not being applied with consistency in all courts. In one
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case, even though the opposing party to a returning military
parent's motion to restore orders did not allege fitness
issues or other best interest issues, let alone present the
court with a prima facie case that the reversion would not be
in the child's best interest, the court in at least this case
ordered a new ? Custody Evaluation on its own without the
opposing party making any such request? Ironically this has
caused a year delay for the military parent and the child and
produced no evidence affecting the fitness of the military
parent that the reversion would not be in the child's best
interest. The unnecessary litigation costs, in at least this
case, have caused financial hardships on the parties and
unnecessarily taken up already strained court resources.
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The Office of the Deputy Assistant Secretary of Defense
(Military Community Family Policy) writes:
Many divorced Service members have custody of, or visitation
rights with, children whose other parent is not the Service
member's current spouse. Many of these Service members who
are deployed away from their family find that States do not
consider the unique aspects of military service when making
custody decisions. These absences due to military service
can undermine and disrupt existing arrangements, creating
stress on parents and children.
2.Child custody evaluations
Under existing law it is presumed that a custody order issued
during a servicemember parent's deployment reverts back to the
original order unless the court finds that the reversion is not
in the child's best interest. (Fam. Code Sec. 3047.) This bill
would add that a court may not order a custody evaluation unless
the party opposing the reversion makes a prima facie showing
that the reversion is not in the child's best interest. If this
showing is made, any party may request, or the court may order
on its own motion, a child custody evaluation.
In opposition to this bill, the Association of Family
Conciliation Courts (AFCC) argues:
Trying to legislate a rule that limits the court's ability to
investigate these factors in determining whether a
"reversion" is appropriate, is not practical and appears to
give greater importance to a parent's perceived right to what
was over the child's needs now.
Moreover, with a large population of parents who are
self-represented, it cannot be assumed that the non-deployed
parent will be able to present sufficient information or
evidence to a court timely to meet the burden created by this
bill.
The standard existing under current law, that a court must order
a reversion to the original custody order unless it finds that a
reversion is not in the child's best interest, implies that
parties opposing reversion must argue and present evidence
related to a child's best interest. Therefore, under current
law if no evidence is presented that reversion is not in a
child's best interest, a court's hands are tied, and the
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temporary custody order must revert to the original order issued
before the servicemember parent's deployment. Furthermore, a
prima facie showing of evidence appears to be a low threshold
for a nondeployed parent, and arguably requires only the party
opposing the reversion allege facts adequate to infer the
underlying conduct supporting the cause of action. In other
words, the party needs only to allege sufficient facts that
would support the proposition that a reversion to the original
custody order would not be in the best interest of the child.
Arguably, parents who argue that a reversion is not in the best
interest of the child and provide supporting facts and evidence,
are already making the prima facie showings required under this
bill. Furthermore, self-represented litigants are not required
to understand or have knowledge of custody evaluations because
the language of the bill does not require a parent to request an
evaluation. A court may order one on its own motion when it has
been shown that a reversion may not be in the child's best
interests. Thus, under this bill, a parent's burden is not
significantly changed; it remains limited to evidence related to
a child's best interests. The Executive Committee of the Family
Law Section of the State Bar (FLEXCOM), supports this bill, and
argues that this bill would
�ensure] the non-deployed parent does not attempt to prolong
a reversion to the prior custody and visitation order, and
prolong a deployed parent's ability to gain access to his or
her child, by demanding a custody evaluation, which often
takes six to nine months to complete.
The proposed language still provides the court with
discretion to order the evaluation, so long as the party
opposing the reversion order (i.e., the non-deployed parent)
makes a prima facie showing that a reversion to the order in
place before the deployment is no in the child's best
interest.
It should be noted that this bill will not change existing law
which requires a reversion to an original custody order unless a
court finds that it is not in the child's best interests. This
bill would, however, limit a court's ability to order a child
custody evaluation when through the servicemember parent the
court discovers evidence that a reversion might not be in the
child's best interest. Arguably, this does not significantly
increase the burden on self-litigants, yet does somewhat limit a
court's ability to act in the best interest of the child.
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3.Expedited final custody orders
This bill seeks to expedite custody litigation for families with
a servicemember parent in two ways. First, as discussed above,
this bill would prohibit a court from ordering custody
evaluations absent an evidentiary showing by a party that a
reversion is not in the child's best interest. Secondly, this
bill would provide that a parent and child's relocation during
the deployed parent's absence while a temporary modification
order is in effect shall not, by itself, terminate the exclusive
and continuing jurisdiction of the court for later determining
custody.
The finality of custody orders is a critical aspect of child
custody. When parents initially file a custody action, a court
is concerned with the health, safety, and welfare of the child
will apply the best interest analysis. However, after a custody
order is "final," a court will require a showing of a
significant change of circumstances so affecting the child that
modification of custody is essential to the child's welfare.
(Marriage of LaMusga (2004) 32 Cal.4th 1072; In re Marriage of
Burgess (1996) 13 Cal.4th 25.) From a policy perspective,
courts do not want to upset the permanent placement of a child
and the stability it offers. Therefore, the showing of a
"significant change in circumstances" is a very high standard
and often difficult for a parent to prove. For many children,
final orders signal an end to litigation and a permanent home.
A child's welfare depends on achieving this stability at the
earliest time possible.
Because child custody evaluations may take six to nine months to
complete, they may delay the issuing of a permanent custody
order. Before the custody evaluation is completed and the court
evaluates its results, a temporary custody order may not revert
back to the original order issued before a parent's deployment.
In practice this may result in a servicemember parent not having
access to his or her child for an extended period of time.
Arguably, requiring a party to make a prima facie case alleging
what the custody evaluation is ultimately supposed to prove,
will limit the use of evaluations for the sole purpose of
delaying a change in a custody order.
This bill provides that the initial court will retain exclusive
continuing jurisdiction over the custody determination and would
also define an absence of a parent or child from the state while
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one parent is deployed as a "temporary absence." These
provisions are consistent with the Uniform Child Custody
Jurisdiction Enforcement Act (UCCJEA) and similar statutory
language has been enacted in other states. (See Background.)
Under the UCCJEA, "home state" is defined as the state in which
a child has lived in with a parent for six months immediately
before the commencing of a custody proceeding. A home state
generally retains jurisdiction over custody matters. (Fam. Code
Sec. 3402 (g).) The UCCJEA creates an exception to this rule,
however, by providing that a temporary absence is not considered
as part of the requisite six month residency. (Id.) Under the
UCCJEA a court retains exclusive, continuing jurisdiction over
custody determinations unless neither party nor child have any
connection to the state, or neither party or child reside in the
state. By designating a child's absence from the state as
"temporary" if one parent is deployed, this bill ensures the
child and non-deployed parent will still be subject to the
California court's jurisdiction for the purpose of the custody
order alone. Arguably, this is consistent with the UCCJEA.
FLEXCOM notes that this language in this bill is "designed to
ensure the non-deployed parent does not use the deployment of a
servicemember out of California as the sole reason to request
that another state assume home state jurisdiction over the minor
child?" Furthermore, in litigation where jurisdiction is
pre-determined because the original action was filed there, the
parties need not litigate over jurisdictional issues or proper
forum. This expedites the litigation process and ensures a
presiding judge will have with some familiarity with the case
and the laws and standards applied in the initial action.
Support : AMVETS-Department of California; California
Association of County Veterans Service Officers; Deputy
Assistant Secretary of Defense (Military Community and Family
Policy); Executive Committee of the Family Law Section of the
State Bar (FLEXCOM); Marianne Rufty-Former Executive Director of
U.S. Commission on Child and Family Welfare; Veterans of Foreign
Wars; Vietnam Veterans of America-California State Council
Opposition : The Association of Certified Family Law Specialists
(ACFLS); Association of Family and Conciliation Courts (AFCC)
HISTORY
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Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1082 (Morrow, Chapter 154, Statutes 2005) See Background.
AB 2416 (Cook, Chapter 466, Statutes 2010) See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 73, Noes 0)
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