BILL ANALYSIS �
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THIRD READING
Bill No: AB 2365
Author: Nestande (R), et al.
Amended: 6/4/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/19/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
ASSEMBLY FLOOR : 66-0, 4/12/12 - See last page for vote
SUBJECT : Family law: child custody
SOURCE : Author
DIGEST : This bill requires 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. This bill also removes
the January 1, 2013 sunset date on the law which authorizes
a court to order a person seeking custody of a child to
undergo drug or alcohol testing, as specified.
ANALYSIS : 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. (Family Code
CONTINUED
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(FAM) 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 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 Sec. 3041.5)
This bill removes 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 requires a court, when making a child custody
determination, to consider either parent's habitual or
continual abuse of prescribed controlled substances.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/21/12)
California Judges Association;
Judicial Council of California
Mothers Against Prescription Drug Abuse
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OPPOSITION : (Verified 6/21/12)
Association of Certified Family Law Specialists
Association of Family and Conciliation Courts
California Partnership to End Domestic Violence
Drug Policy Alliance
ARGUMENTS IN SUPPORT : According to the author:
Prescription drug abuse is on the rise and there are
currently no safeguards in existing law for courts to
take 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."
ARGUMENTS IN OPPOSITION : The Association of Certified
Family Law Specialists (ACFLS), in opposition, states:
?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.
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 dependent or whether he
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or she is an occasional user; and does not identify persons
in need of treatment."
The author, in response to the opposition, states:
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.
ASSEMBLY FLOOR : 66-0, 4/12/12
AYES: Achadjian, Allen, Atkins, Beall, Bill Berryhill,
Block, Blumenfield, Bradford, Brownley, Buchanan, Butler,
Charles Calderon, Carter, Chesbro, Conway, Davis,
Dickinson, Donnelly, Eng, Feuer, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Gatto, Gordon, Gorell, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hern�ndez, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza,
Miller, Monning, Morrell, Nestande, Nielsen, Olsen, Pan,
Perea, V. Manuel P�rez, Portantino, Silva, Smyth,
Solorio, Torres, Valadao, Wagner, Williams, Yamada, John
A. P�rez
NO VOTE RECORDED: Alejo, Ammiano, Bonilla, Campos,
Cedillo, Cook, Fletcher, Garrick, Lara, Mitchell, Norby,
Skinner, Swanson, Wieckowski
RJG:n 6/21/12 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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