BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1206 (Walters)
As Amended April 12, 2012
Hearing Date: April 24, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Child Abduction Prevention
DESCRIPTION
This bill would prohibit parents in a dissolution proceeding
from applying for a passport or replacement passport for the
minor child or children without prior written consent from the
other parent or a court order.
This bill would require that when a parent is ordered to
surrender passports, and that parent is a foreign national, the
court shall request that the names of the parent and the child
or children be placed in the Prevent Departure Program of the
United States Department of Homeland Security. This bill would
also require that when a parent is ordered by the court to
surrender the minor child or children's passports and the court
further prohibits the parent from applying for a new passport or
replacement passport for the minor child or children, the court
shall enter the name of the child in the Children's Passport
Issuance Alert Program of the United States Department of State.
This bill would authorize courts to include in protective
custody warrants, issued to secure the recovery of an unlawfully
detained or concealed child, an order to freeze the California
assets of a party alleged to be in possession of the child.
BACKGROUND
The Synclair-Cannon Act was passed by the California Legislature
in 2002 in response to child abductions by parents. AB 2441
(Bates, Chapter 856, Statutes of 2002). The Synclair-Cannon Act
(more)
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took a preventive approach, requiring courts in custody or
visitation proceedings to consider specified factors indicating
a risk of abduction and to consider implementing specified
preventive measures. Over the past decade, these provisions of
existing law have dictated the standard California courts use to
determine and impose necessary restrictions when a risk of
parental child abduction exists.
International child abductions are challenging to prevent with
state law alone. Accordingly, federal law and international
agreements have attempted to address this problem. (See Changes
to Existing Law.) Despite lawmakers' efforts, parental child
abductions to foreign countries have almost doubled since 2006.
The U.S. Department of State received 1,135 new requests for
assistance in the return of 1,621 children to the U.S. in 2009.
(U.S. Dept. of State, Report on Compliance with the Hague
Convention on the Civil Aspects of International Child
Abduction, (2010) (accessed April 20, 2012).) And, according to the
author, in 2011, 60 international abduction cases involving 84
children were opened in Orange County, California alone.
SB 1206 seeks to add protections to existing law to further
prevent international parental child abduction.
CHANGES TO EXISTING LAW
1.Existing law requires, upon application for dissolution or
legal separation, that the summons contain a temporary
restraining order (TRO) restraining both parties from removing
the minor child from the state without the prior written
consent of the other party and an order of the court. (Fam.
Code Sec. 2040(a)(1).)
This bill would add that in a dissolution proceeding parents
are also restricted from applying for a passport or
replacement passport for the minor child or children without
written consent from the other parent or a court order.
2.Existing law , under the Uniform Child Custody and Enforcement
Act, requires state courts to respect and assist in the
enforcement of valid custody orders of other states and
countries, including assisting in the recovery of children
abducted by noncustodial parents. (Fam. Code Sec. 3400 et
seq.)
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Existing federal law , under the International Child Abduction
Remedies Act, implements the Hague Convention on the Civil
Aspects of International Child Abduction, which requires
signatory countries, including the U.S., to return abducted
children to the state or country of lawful custody. (42
U.S.C. 11601.)
Existing law requires that, in cases which the court becomes
aware of facts indicating a possible risk of abduction, the
court shall determine whether measures are needed to prevent
the abduction of the child. In determining whether a risk of
abduction exists, the court shall consider whether a party:
has previously committed or threatened the following
actions: taken, enticed away, kept, withheld, or
concealed a child in violation of the right of custody or
visitation of a person;
lacks strong ties to this state;
has strong familial, cultural or emotional ties to
another state or country, including foreign citizenship
(This factor shall be considered only if evidence exists
in support of another factor in this section);
has no financial reason to remain in this state (due
to unemployment, ability to work anywhere, or financial
independence);
has engaged in planning activities that would
facilitate a child's removal from the state, including
quitting a job, selling or terminating the lease on a
residence, closing a bank account, liquidating assets,
applying for a passport, or applying for a copy of the
child's birth, school, or medical records, or purchasing
airplane or other travel tickets;
has a history of lack of parental cooperation,
domestic violence, or child abuse; and
has a criminal record. (Fam. Code Sec. 3048(b)(1).)
Existing law provides that, if the court makes a finding that
there is a need for preventative measures after considering
the above factors, the court shall consider taking one or more
of the following measures to prevent abduction of the child:
ordering supervised visitation;
requiring a parent to post a bond sufficient to
serve as a financial deterrent to abduction;
restricting either parent's right to remove the
child from the county, the state or the country;
restricting the custodial parent's right to relocate
with the child without prior court approval, or prior
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written agreement by the noncustodial parent;
requiring the surrender of passports, prohibiting a
parent from applying for a new passport for the child,
and notifying the relevant foreign consulate of passport
restrictions;
requiring a party to register a California order in
another state as a prerequisite to allowing a child to
travel to that state for visits, or to obtain a "mirror
order" from a foreign country, as defined, as a
prerequisite to allowing a child to travel to that
country for visits;
requiring a party taking a child on a foreign visit
to provide the child's travel itinerary, copies of
round-trip airplane tickets, a list of addresses and
telephone numbers where the child can be reached at all
times, and an open air ticket for the left-behind parent
in case the child is not returned; and
authorizing law enforcement assistance. (Fam. Code
Sec. 3048(b)(2).)
This bill would require that if a parent is ordered to
surrender passports, and if the parent is a foreign national,
the court shall request that the names of the parent and the
child or children be placed in the Prevent Departure Program
of the United States Department of Homeland Security.
This bill would require that where a parent is ordered to turn
over passports and prohibited from applying for a new passport
for the minor child, the court shall enter the name of the
child in the Children's Passport Issuance Alert Program of the
United States Department of State.
1.Existing law provides that upon request of the district
attorney, the court may issue a protective custody warrant to
secure the recovery of an unlawfully detained or concealed
child. (Fam. Code Sec. 3134.5.)
This bill would provide that the protective custody warrant
for the child may also contain an order to freeze the
California assets of the party alleged to be in possession of
the child.
COMMENT
1. Stated need for the bill
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The author writes:
In 2010, the U.S. Department of State reported 2,488 children
abducted to other countries from the United States. In 2011,
according to the local district attorney's office, 60
international abduction cases involving 84 children were
opened in Orange County alone.
While the Synclair-Cannon Act developed an excellent
framework for preventing child abductions, there are many
areas where the law can be strengthened to further deter
international abductions from taking place.
It has been 10 years since the Synclair-Cannon Act was signed
into law and international child abductions continue to be a
major problem in California. The state should create more
barriers to international abduction by adding more protections
to the Family Code.
2.Courts would be required to request that the parent and/or
child be added to federal abduction prevention lists
Existing law authorizes the court, in custody or dissolution
proceedings, to take one or more specified preventative measures
when it becomes aware that there is a risk of child abduction by
one of the parties. The preventative measures include,
requiring a party to surrender the child's passport, prohibiting
a party from applying for a new passport for the child,
requiring a party to post a bond sufficient to serve as a
financial deterrent to abduction, or the ordering of supervised
visitation. Where the court orders particular preventative
measures and a circumstance, as specified exists, this bill
would have the court enter the name of child and/or party onto
federal abduction prevention lists.
Due to significant budget reductions, many California courts are
struggling to fulfill existing responsibilities and mandates.
Opponents argue that imposing additional, mandatory duties on
courts threatens to delay and complicate the judicial process
further. In opposition to this bill, the Association of Family
Conciliation Courts (AFCC) points out that "�a]ll of the
provisions in this bill are either already federal law or within
the scope of authority for a judge to consider and order if and
when the evidence supports such an action." Because SB 1206
would mandate court action when specified preventative measures
are ordered pursuant to current law, SB 1206 would impose two
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new duties on the courts as described below.
a) Requiring the court to request that a parent and child
be added to the "Prevent Departure Program" of the U.S.
Department of Homeland Security
Under existing law, when a case has been identified as a
potential abduction risk pursuant to one or more
considerations the court may choose to take a variety of
preventative measures. This bill would require a court, if it
orders the surrender of passports and other travel documents
and if the parent is a foreign national, to contact the Office
of Children's Issues at the United States Department of State
and request that the parent and child be placed in the
"Prevent Departure Program" of the U.S. Department of Homeland
Security (DHS).
In opposition, the Judicial Council of California writes:
The Prevent Departure Program is a high level anti-terrorism
effort initiated in the wake of the September 11th attacks, and
it is a program about which the DHS does not provide public
information. The underlying law for this program contemplates
that law enforcement agencies will be the entities making these
kinds of requests because it requires cooperation from other law
enforcement agencies to actually prevent a person on the list
from exiting the country. As a result, we think it is more
appropriate to direct parents who are concerned that a foreign
national parent may try to abduct the child seek assistance from
law enforcement to access this program. The court record may
not provide enough information to support placement in the
program and courts will then be in the position of investigating
these cases further to carry out these requests. Such
investigatory and enforcement actions are not appropriate
judicial functions.
The author contends that because two specified conditions must
exist before courts are required to request that a parent and
child are placed in the Prevent Departure Program, (the court
must choose the preventative measure of ordering the surrender
of passports and the parent must be a foreign national), this
situation is unlikely to arise often.
On the other hand, as the opposition argues, where entities
other than the court are in a better position to act, it is
arguably not necessary to impose new duties on the courts
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particularly at a time when budget cutbacks have so
significantly threatened the justice system. The following
amendment would delete this section of the bill and would
resolve this issue.
Suggested amendment:
On page 7, delete lines 4 - 10
b) Requiring the court to request that a child's name be
placed in the "Children's Passport Issuance Alert Program"
This bill would provide that where a risk of abduction has
been identified by the court pursuant to the considerations
listed in existing law, and the court orders the surrender of
passports and other travel documents and prohibits a parent
from ordering new or replacement passports, the court shall
enter the name of the child in the "Children's Passport
Issuance Alert Program" (CPIAP) of the United States
Department of State by contacting the Office of Children's
Issues and submitting the correct form.
The CPIAP website is a resource for parents allowing them to
enter a minor child in a Passport Lookout System. The system
flags the minor child's name in all U.S. passport agencies and
embassies, and consulates abroad. CPIAP requires the
information of the parent who is requesting that the child's
name be entered into the system as well, so they may serve as
a point of contact when alerts are issued. The registering
parent is thereby provided advance notice of potential
preparations for international travel with the child. (See
(accessed April 19, 2012).)
While CPIAP does not prohibit entities other than parents from
entering the names of children into the program, the CPIAP
form is designed to be used by parents. The website is easy
to navigate, and the form is in clear language. The program
relies on communication with one point of contact; typically
the person or entity who submitted the required form.
In opposition to this provision, the Judicial Council writes:
Because access to this program is easy for parents to accomplish
and because parents are in the best position to maintain ongoing
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contact with this program we believe it is inappropriate and
unnecessary to place this burden on the court. Courts are
struggling to meet existing statutory mandates in the face of
unprecedented budget reductions. As a result, it is likely that
placing this responsibility on the court will only delay the
completion of this task and not provide optimal protection to
these children.
Given the number of children abducted to foreign countries
every year (2,488 in 2010), and modestly assuming the number
of potential abductions to foreign countries is at least
equal, requiring the court to act as a point of contact for
each child entered into CPIAP would be extremely burdensome.
Because the CPIAP program is accessible to parents, and
parents are in a better position than courts to maintain
ongoing contact with the program regarding their child,
imposing this responsibility on the courts appears to be
unnecessary. The following amendment would remove this
provision of the bill and resolve this issue:
Suggested amendment:
On page 7, delete lines 14 - 22
1.Orders to freeze the California assets of a party alleged to
be in possession of the child
Current law provides that a protective custody warrant may be
issued for a child who has been abducted. (Fam. Code Sec.
3134.5(a).) This bill would authorize the court to include in
the protective custody warrant an order to freeze the California
assets of the party alleged to be in possession of the child.
While the potential of freezing the California assets of a party
may function as a deterrent to child abduction, or prove
inconvenient enough to promote a party's compliance with law
enforcement in the event of child abduction, this provision of
SB 1206 is vague and could arguably lead to unintended
consequences. For example, it is not clear what it means to be
the party "alleged to be in possession of the child," and what
standard would have to be met before a party's assets could be
frozen under this provision. Would an allegation that a party
has illegally detained or concealed the child be enough to
result in a court freezing the assets of the party alleged to be
in custody of the child? The author indicates that the intent of
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the bill is that there would need to be reasonable suspicion
that the parent actually took the child before a court would be
able to freeze the parent's California assets.
In addition, it is not clear from this provision which assets of
the parent alleged to be in possession of the child would be
frozen. Would the court freeze all assets, including real
property? Freezing real property assets triggers due process
concerns and raises questions about the notice provided to
co-owners of the real property as well. Because the author's
intent is that a party alleged to be in unlawful possession of
the child would not have immediate access to money, thereby
making continued concealment of the child more difficult, this
provision should be limited to immediately accessible monetary
assets, such as bank accounts. The following amendment would
resolve this issue:
Suggested amendment:
On page 9, line 8, after the period insert "For purposes of
this subdivision, "assets" shall mean funds contained in a
bank account held in California."
2.TRO would restrain parties from applying for passports
This bill would restrain parents from applying for a new or
replacement passport for a minor child or children without the
prior written consent of the other party or a court order
authorizing the action. Under existing law, parties in
dissolution or custody proceeding must obtain consent from the
opposing party or an order from the court before taking a child
out of state. The provision in this bill requiring consent from
the opposing party or an order of the court before applying for
a new or replacement passport for a minor child, is consistent
with existing law in that it can act as a barrier to parties
from taking children from the state without prior consent or
approval. This provision does not require the automatic
surrender of a child's passport to the court, and therefore does
not prevent parties from using existing passports for reasons
other than removing the child from the state.
This provision would add a layer of protection against
international child abduction without burdening the family law
courts. As written, this provision is automatic, and imposes no
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additional duties on the court. It is effectively an automatic
temporary restraining order, and implies that the court may take
more drastic preventative measures if a parent is in violation.
Secondly, passport requests generally take time, typically four
to six weeks, to process. In custody proceedings, this may be
enough time for a parent to take preventative actions on his or
her own. The parent may enter their child's information into
CPIAP (see Comment 2(b)), and thereby receive a notification
when the other party applies for a passport for the minor child.
The parent may also have adequate time to file additional
restraining orders or arrange for a more secure custody order.
This provision of the bill, which would require parental consent
or a court order before new or replacement passports may be
issued, may be effective when coupled with a court order to
surrender passports and travel documents. Under current law,
after appropriate consideration of abduction risk factors, the
court may require one or more specified preventative measures,
including that a parent surrender passports and other travel
documents. In theory, where a parent has entered a child in
CPIAP, and the court has ordered both the surrender of passports
and other travel documents, and issued a prohibition on the
issuance of new passports, removing the minor child from the
country without the other party's knowledge or consent should be
very difficult.
Support : Children's Rights Council of Japan; Andrew Ko
Opposition : Association of Family Conciliation Courts;
California Judges Association; Judicial Council of California
HISTORY
Source : Bring Abducted Children Home (BACHome)
Related Pending Legislation : None Known
Prior Legislation : AB 2441 (Bates, Chapter 856, Statutes of
2002) enacted the Synclair-Cannon Child Abduction Prevention
Act. AB 2441 requires a court, in cases in where the facts
indicate that there may be a risk of child abduction, to
consider specified factors in determining the risk of abduction
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and to determine whether specified abduction preventions are
needed.
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