BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2365 (Nestande)
As Amended June 4, 2012
Hearing Date: June 19, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Family Law: Child Custody
DESCRIPTION
This bill would require courts, in determining the best interest
of a child in custody proceedings, to consider either parent's
continual or habitual abuse of prescribed controlled substances.
Existing law, until January 1, 2013, authorizes a court to order
a person seeking custody of a child to undergo drug or alcohol
testing, as specified. This bill would remove the sunset date,
thereby permanently extending the authority for a court to order
drug or alcohol testing.
BACKGROUND
Existing law provides that it is the public policy of the state
to assure that the health, safety, and welfare of children are
the court's primary concern in determining the best interest of
children. Unless it conflicts with the protection of a child's
health, safety or welfare, it is also the policy of the state to
assure a child's frequent and continuing contact with both
parents after the parents have separated or dissolved their
marriage, and to encourage parents to share in the rights and
responsibilities of child rearing. (Fam. Code Sec. 3020.)
In determining what custody arrangement is in the best interest
of a child, the court must take into account, among any other
factors it finds relevant: the health, safety and welfare of the
child; any history of abuse or domestic violence; and the nature
(more)
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and amount of contact with both parents. SB 384 (Haynes,
Chapter 836, Statues of 1996) required courts to additionally
consider the habitual or continual illegal use of controlled
substances, or the habitual or continual abuse of alcohol by
either parent in determining the best interest of a child.
Additionally, in 2004, AB 1108 (Bermudez, Chapter 19 Statutes of
2004) was enacted to provide the authority for courts to order
any person seeking custody or visitation with a child to undergo
testing for alcohol or drugs, under specified guidelines. This
provision was codified at Family Code Section 3041.5 and has a
sunset date of January 1, 2013.
Since the enactment of SB 384 and AB 1108, there has been a rise
in the abuse of prescription drugs. According to the Huffington
Post, "�t]hree out of every 10 people killed on California roads
in 2010 tested positive for legal and/or illegal drugs,
according to the news release. ? Drivers high on prescription
drugs, marijuana or other drugs often go under-reported because
drug testing is expensive and there is no established legal
limit." (Miles, Drugs & Driving More Fatal Than Drunk Driving In
California (Feb. 29, 2012) Huffington Post, �as of May 29, 2012].)
The Office of National Drug Control Policy writes, "�t]he number
of prescriptions filled for opioid pain relievers - some of the
most powerful medications available - has increased dramatically
in recent years. From 1997 to 2007, the milligram-per-person use
of prescription opioids in the U.S. increased from 74 milligrams
to 369 milligrams, an increase of 402%. In addition, in 2000,
retail pharmacies dispensed 174 million prescriptions for
opioids; by 2009, 257 million prescriptions were dispensed, an
increase of 48%. ?�T]hese increases mirror increases in
prescription drug abuse." (Office of National Drug Policy,
Prescription Drug Abuse �as of May 29, 2012].)
In response to concern over prescription drug abuse, this bill
would require the court to consider a parent's abuse of
prescription drugs when determining the best interest of a child
in custody proceedings. Also, this bill would remove the sunset
date in Family Code Section 3041.5, thereby permanently
authorizing a court to order drug or alcohol testing, as
specified, for any person seeking custody or visitation with a
child.
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CHANGES TO EXISTING LAW
Existing law provides that the policies of the Legislature are
to assure the health, safety and welfare of the child, and that
children have frequent and continuing contact with both parents,
consistent with the best interest of the child. When these two
policies conflict, existing law requires custody decisions to be
made in a manner to ensure the health, safety and welfare of the
child, and the safety of all family members. (Fam. Code Sec.
3020.)
Existing law provides that in determining the best interest of a
child in a dissolution or custody proceeding, the court must
consider, among any other relevant factors:
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 contacts 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 authorizes the court, until January 1, 2013, to
order any person seeking custody or visitation to be tested for
the illegal use of controlled substances and the use of alcohol
if there is a judicial determination based upon a preponderance
of the evidence that there is the habitual, frequent, or
continual illegal use of controlled substances, or the habitual
or continual abuse of alcohol by the person. (Fam. Code Sec.
3041.5.)
This bill would remove this sunset date thereby permanently
extending the authority for a court to order drug or alcohol
testing for persons seeking custody or visitation of a child.
This bill would require a court, when making a child custody
determination, to consider either parent's habitual or continual
abuse of prescribed controlled substances.
COMMENT
1.Stated need for the bill
According to the author:
Prescription drug abuse is on the rise and there are
currently no safeguards in existing law for courts to take
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that into consideration when making a custody decision.
The Sacramento Bee reports, "The neonatal unit isn't supposed
to be a drug rehab ward. But the drugs their mothers took
are causing more newborns in the Sacramento area to spend
their first days of life suffering through the pains of
withdrawal. According to diagnosis reports from 2008 to 2010
submitted by hospitals to the state, the number of infants
suffering withdrawal in the four-county area has doubled
since the start of the decade."
2.Abuse of prescription drugs
This bill would require a court to consider a parent's abuse of
prescribed controlled substances, in addition to use of illegal
controlled substances or alcohol abuse, when determining what
custody or visitation order is in the best interest of a child.
As a result, this bill would require courts to look into only a
parent's abuse, not authorized use of, prescribed controlled
substances. The National Institute on Drug Abuse defines
prescription drug abuse as "the intentional use of a medication
without a prescription; in a way other than as prescribed; or
for the experience or feeling it causes." (National Institute
on Drug Abuse, Topics in Brief: Prescription Drug Abuse
(December 2011)
http://www.drugabuse.gov/publications/topics-in-brief/
prescription-drug-abuse> �as of June 12, 2012].)
Judges appear to be well-equipped to distinguish between the
"use" and "abuse" of a substance because they must make this
distinction frequently when faced with allegations that a
parent's alcohol abuse threatens the best interest of a child.
Prescription medications, like alcohol, are legal when consumed
under certain conditions, but clearly have the potential to be
abused. Under existing law, in determining whether a parent
abuses alcohol in a manner that compromises a child's best
interest, a court will look to the amount of alcohol consumed,
the frequency, and the resulting behavior. The court will also
take into consideration the age of the child and the type of
visitation or custody sought. This type of analysis arguably
seems appropriate for courts to use when evaluating whether a
parent is abusing prescribed controlled substances as required
under this bill.
The Association of Certified Family Law Specialists (ACFLS), in
opposition, states:
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?if adopted, an inquiry is required into every case with
regard to prescriptions of controlled substances whether or
not there is any evidence that the substance is being abused.
Controlled substances could include common treatments for
ordinary diagnoses such as anxiety, coughs, depression, pain
not responsive to aspirin, etc. ? Such allegations regarding
prescribed medical/psychological/psychiatric treatments have
great potential to invade the privacy of parents where there
is no evidence of abuse through substance.
Likewise, the Drug Policy Alliance, also in opposition writes
that this bill "infringes on patient privacy rights protected by
the California Constitution by either forcing parents to report
prescribed medications or authorizing the court to access a
parent's medical records."
The author responds:
Courts routinely asses and judge independent evidence to
gauge the credibility of allegations in custody cases. An
assessment regarding prescription drug abuse is no different
than one regarding allegations of alcoholism or illegal drug
abuse. Under existing law courts already have access to
parents' medical, psychiatric, psychological, financial and
employment records. Court-appointed evaluators pursuant to
Evidence Code section 730, a routine event in contested
custody disputes, obtain all of this information in making
custody recommendations to the court. The information is
kept out of the court file to protect privacy concerns.
Courts are well accustomed to this and do not permit fishing
expeditions in their courts without probable cause. The
inclusion of prescribed controlled substances does not
deviate from what is already allowed under current law.
Arguably, authorizing the court to consider this in every case
would appear to place all substance abuse, including use of
illicit drugs, alcohol abuse, and abuse of prescribed controlled
substances, at the same level of significance in determining
what is in the best interest of a child.
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3.Drug and alcohol testing
In 2004, AB 1108 (Bermudez, Chapter 19, Statutes of 2004) was
enacted to provide the authority for courts to order any person
seeking custody or visitation with a child to undergo testing
for alcohol or drugs, if the court determined that the person is
a habitual, frequent, or continual illegal user of controlled
substances, or a habitual or continual abuser of alcohol. For a
court to make these determinations, the finding must be
supported by a preponderance of the evidence, which may include
a conviction for the illegal use or possession of a controlled
substance within the past five years. Originally these
provisions were set to sunset on January 1, 2008. This sunset
was extended by AB 1164 (Tran, Chapter 140, Statutes of 2009)
until January 1, 2013. This bill would remove the sunset,
thereby extending these provisions indefinitely.
AB 1108 also required the Judicial Council to study the
implementation of the AB 1108, and issue a final report to the
Legislature. That report was published in July of 2007, and
contains a number of findings regarding the implementation of
Family Code Section 3014.5. (Judicial Council, Drug and Alcohol
Testing in Child Custody Cases: Implementation of Family Code
Section 3041.5, July 2007, found at < http://
www.courts.ca.gov/documents/AB1108Report052307final.pdf>.)
The Judicial Council reported that there is evidence to indicate
that substance abuse issues arise commonly in family law cases,
and that:
Family law attorneys in the focus groups estimated half of
their cases involved substance abuse issues with one or both
parents. A statewide study of contested custody and
visitation cases in mediation found that drug or alcohol
abuse is an issue in 27 percent of those cases. For custody
and visitation disputes not resolved in mediation, judicial
officers indicated that drug or alcohol issues were raised
fairly frequently. Sixty-five percent of judicial officers
responded that drug/alcohol issues were raised often or very
often. (Judicial Council, Drug and Alcohol Testing, p. 10.)
In opposition to this bill the Drug Policy Alliance writes "the
reality is that drug testing is a limited instrument and does
not provide evidence of a person's ability or fitness to parent.
? �E]ven assuming the results are accurate, drug testing does
not provide information to determine whether a person is drug
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dependent or whether he or she is an occasional user; and does
not identify persons in need of treatment."
The report issued by the Judicial Council indicates that
existing law and practice arguably take these concerns into
account. According to the report, because courts must determine
that the person is a habitual, frequent, or continual user of
controlled substances, or a habitual or continual abuser of
alcohol, by a preponderance of the evidence, most judicial
officers order tests in less than 40 percent of these cases.
According to surveyed judicial officers, most parties ordered to
undergo testing comply with the order and produce a valid drug
test, free of tampering. Once a problem with substance abuse is
identified through testing, what a court does next is driven by
the best interest of the child. A positive result, by itself,
will not disqualify a person from receiving custody or
visitation. Courts must instead weigh all relevant factors in
determining the best interest of the child. (See Comment 2; Fam.
Code Sec. 3041.5.)
The Judicial Council reports, "Judicial officers value the
availability of testing for drug or alcohol use. According to
judges, they need this authority to make decisions in the best
interest of the child, particularly if there is a dispute
between parties about whether substance abuse exists. ? The data
demonstrate that the legislation is being utilized
conservatively when compared to how often the issue of substance
abuse is raised in a courtroom or mediation session."
Given the necessity for drug and alcohol testing to protect the
best interests of children in custody cases, and the lack of
issues in the eight years since courts have been given this
authority, it is arguably appropriate to permanently remove the
January 1, 2013 sunset on a court's authority to order drug or
alcohol testing.
Support : California Judges Association; Judicial Council of
California; Mothers Against Prescription Drug Abuse; an
individual
Opposition : Association of Certified Family Law Specialists
(ACFLS); Association of Family and Conciliation Courts (AFCC);
California Partnership to End Domestic Violence; Drug Policy
Alliance
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HISTORY
Source : An Individual
Related Pending Legislation : None Known
Prior Legislation :
SB 384 (Haynes, Chapter 836, Statutes of 1996) See Background.
AB 1108 (Bermudez, Chapter 19, Statutes of 2004) See Background.
AB 541 (Harman, Chapter 302, Statutes of 2005) authorized the
juvenile courts to order drug and alcohol testing for a person
seeking guardianship or visitation in a guardianship.
Prior Vote :
Assembly Floor (Ayes 66, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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