BILL NUMBER: AB 2365 CHAPTERED
BILL TEXT
CHAPTER 258
FILED WITH SECRETARY OF STATE SEPTEMBER 7, 2012
APPROVED BY GOVERNOR SEPTEMBER 7, 2012
PASSED THE SENATE AUGUST 9, 2012
PASSED THE ASSEMBLY AUGUST 13, 2012
AMENDED IN SENATE JUNE 4, 2012
AMENDED IN SENATE APRIL 25, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Nestande
(Coauthors: Assembly Members Buchanan, Jeffries, and Olsen)
FEBRUARY 24, 2012
An act to amend Sections 3011 and 3041.5 of the Family Code,
relating to child custody.
LEGISLATIVE COUNSEL'S DIGEST
AB 2365, Nestande. Family law: child custody.
Existing law requires a family court to determine the best
interest of the child for purposes of deciding child custody in
proceedings for dissolution of marriage, nullity of marriage, legal
separation of the parties, petitions for exclusive custody of a
child, and proceedings under the Domestic Violence Prevention Act. In
making that determination, existing law requires the court to
consider specified factors, including whether either of the child's
parents habitually or continually uses alcohol or illegal drugs. The
court may require independent corroboration of an allegation that a
parent is habitually or continually using controlled substances or
illegal drugs.
This bill would require a family court to consider, in determining
the best interest of the child in custody proceedings, either parent'
s habitual or continual abuse of prescribed controlled substances.
Existing law, until January 1, 2013, authorizes a court to require
any person who is seeking custody of, or visitation with, a child
who is the subject of a custody, visitation, or guardianship
proceeding, to undergo testing for the illegal use of controlled
substances and the use of alcohol under specified circumstances, as
specified.
This bill would delete the repeal clause for these provisions and
thus extend the operation of these provisions indefinitely.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3011 of the Family Code is amended to read:
3011. In making a determination of the best interest of the child
in a proceeding described in Section 3021, the court shall, among
any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking
custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or
with whom he or she has had a caretaking relationship, no matter how
temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or
person seeking custody, or a person with whom the parent or person
seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court
may require substantial independent corroboration, including, but not
limited to, written reports by law enforcement agencies, child
protective services or other social welfare agencies, courts, medical
facilities, or other public agencies or private nonprofit
organizations providing services to victims of sexual assault or
domestic violence. As used in this subdivision, "abuse against a
child" means "child abuse" as defined in Section 11165.6 of the Penal
Code and abuse against any of the other persons described in
paragraph (2) or (3) means "abuse" as defined in Section 6203 of this
code.
(c) The nature and amount of contact with both parents, except as
provided in Section 3046.
(d) The habitual or continual illegal use of controlled
substances, the habitual or continual abuse of alcohol, or the
habitual or continual abuse of prescribed controlled substances by
either parent. Before considering these allegations, the court may
first require independent corroboration, including, but not limited
to, written reports from law enforcement agencies, courts, probation
departments, social welfare agencies, medical facilities,
rehabilitation facilities, or other public agencies or nonprofit
organizations providing drug and alcohol abuse services. As used in
this subdivision, "controlled substances" has the same meaning as
defined in the California Uniform Controlled Substances Act, Division
10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision
(b) or (d) have been brought to the attention of the court in the
current proceeding, and the court makes an order for sole or joint
custody to that parent, the court shall state its reasons in writing
or on the record. In these circumstances, the court shall ensure that
any order regarding custody or visitation is specific as to time,
day, place, and manner of transfer of the child as set forth in
subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the
parties stipulate in writing or on the record regarding custody or
visitation.
SEC. 2. Section 3041.5 of the Family Code is amended to read:
3041.5. In any custody or visitation proceeding brought under
this part, as described in Section 3021, or any guardianship
proceeding brought under the Probate Code, the court may order any
person who is seeking custody of, or visitation with, a child who is
the subject of the proceeding to undergo testing for the illegal use
of controlled substances and the use of alcohol if there is a
judicial determination based upon a preponderance of evidence that
there is the habitual, frequent, or continual illegal use of
controlled substances or the habitual or continual abuse of alcohol
by the parent, legal custodian, person seeking guardianship, or
person seeking visitation in a guardianship. This evidence may
include, but may not be limited to, a conviction within the last five
years for the illegal use or possession of a controlled substance.
The court shall order the least intrusive method of testing for the
illegal use of controlled substances or the habitual or continual
abuse of alcohol by either or both parents, the legal custodian,
person seeking guardianship, or person seeking visitation in a
guardianship. If substance abuse testing is ordered by the court, the
testing shall be performed in conformance with procedures and
standards established by the United States Department of Health and
Human Services for drug testing of federal employees. The parent,
legal custodian, person seeking guardianship, or person seeking
visitation in a guardianship who has undergone drug testing shall
have the right to a hearing, if requested, to challenge a positive
test result. A positive test result, even if challenged and upheld,
shall not, by itself, constitute grounds for an adverse custody or
guardianship decision. Determining the best interests of the child
requires weighing all relevant factors. The court shall also consider
any reports provided to the court pursuant to the Probate Code. The
results of this testing shall be confidential, shall be maintained as
a sealed record in the court file, and may not be released to any
person except the court, the parties, their attorneys, the Judicial
Council, until completion of its authorized study of the testing
process, and any person to whom the court expressly grants access by
written order made with prior notice to all parties. Any person who
has access to the test results may not disseminate copies or disclose
information about the test results to any person other than a person
who is authorized to receive the test results pursuant to this
section. Any breach of the confidentiality of the test results shall
be punishable by civil sanctions not to exceed two thousand five
hundred dollars ($2,500). The results of the testing may not be used
for any purpose, including any criminal, civil, or administrative
proceeding, except to assist the court in determining, for purposes
of the proceeding, the best interest of the child pursuant to Section
3011 and the content of the order or judgment determining custody or
visitation. The court may order either party, or both parties, to
pay the costs of the drug or alcohol testing ordered pursuant to this
section. As used in this section, "controlled substances" has the
same meaning as defined in the California Uniform Controlled
Substances Act (Division 10 (commencing with Section 11000) of the
Health and Safety Code).