BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1807|
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THIRD READING
Bill No: AB 1807
Author: Cook (R)
Amended: 4/23/12 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 06/12/12
AYES: Evans, Harman, Corbett, Leno
NO VOTE RECORDED: Blakeslee
ASSEMBLY FLOOR : 73-0, 04/30/12 - See last page for vote
SUBJECT : Family law: child custody
SOURCE : Author
DIGEST : This bill (1) provides 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, (2) provides 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, (3) states
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.
ANALYSIS : Existing federal law requires the court, upon
application of a servicemember or on its own motion, to
CONTINUED
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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. (Family Code Section
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.
The habitual or continual illegal use of controlled
substances, or the habitual or continual abuse of alcohol
by either parent. (Family Code Section 3011.)
Existing law provides that, if a temporary custody order is
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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.
(Family Code Section 3047.)
Existing law establishes the Uniform Child Custody
Jurisdiction Enforcement Act (Family Code Section 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. (Family Code Section
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 prohibits 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 will not
be in the child's best interest.
This bill provides 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 prohibits 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 states 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.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/12/12)
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
Marianne Rufty, Former Executive Director of the U.S.
Commission on Child and Family Welfare
Veterans of Foreign Wars
Vietnam Veterans of America-California State Council
OPPOSITION : (Verified 6/12/12)
Association of Certified Family Law Specialists
Association of Family and Conciliation Courts
ARGUMENTS IN SUPPORT : According to the author, "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 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."
ARGUMENTS IN OPPOSITION : The Association of Family and
Conciliation Courts argues:
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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.
ASSEMBLY FLOOR : 73-0, 4/30/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Bonilla, Bradford, Buchanan,
Butler, Charles Calderon, Campos, Carter, Chesbro,
Conway, Cook, Dickinson, Donnelly, Eng, Feuer, Fletcher,
Fong, Fuentes, Beth Gaines, Galgiani, Garrick, Gatto,
Gordon, Gorell, Grove, Hagman, Halderman, Hall, Harkey,
Hayashi, Roger Hern�ndez, Hill, Huber, Hueso, Huffman,
Jeffries, Jones, Knight, Lara, Bonnie Lowenthal, Ma,
Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell,
Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel
P�rez, Portantino, Silva, Skinner, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. P�rez
NO VOTE RECORDED: Blumenfield, Brownley, Cedillo, Davis,
Furutani, Logue, Smyth
RJG:do 6/14/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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