Amended in Senate July 1, 2014

Amended in Senate June 9, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1843

Introduced by Assembly Members Jones and Gordon

February 18, 2014

An act to amend Section 129 of the Business and Professions Code, and to amend Sections 3025.5 and 3111 of the Family Code, relating to child custody.

LEGISLATIVE COUNSEL’S DIGEST

AB 1843, as amended, Jones. Child custody evaluations: confidentiality.

(1) Existing law authorizes a court, in any contested child custody or visitation rights proceeding, to appoint a child custody evaluator to conduct a child custody evaluation, as specified, if the court determines it is in the best interests of the child. Existing law requires the child custody evaluator, if directed by the court, to file a written confidential report on his or her evaluation at least 10 days before any hearing regarding the custody of the child with the clerk of the court, as specified. Existing law requires this report to be served on the parties or their attorneys, and any other counsel appointed for the child. Existing law otherwise prohibits the disclosure of the report, except in certain probate guardianship proceedings, as specified.

Existing law requires the information from a report containing psychological evaluations of a child or recommendations regarding custody or visitation submitted to the court in any proceeding involving child custody or visitation rights to be contained in a document that is to be placed in the confidential portion of the court file. Existing law applies this requirement to, among other things, the written confidential report described above, child custody or visitation recommendations made to the court pursuant to mediation proceedings, and a written statement of issues and contentions put forth by a child’s appointed counsel. Existing law prohibits these reports and recommendations from being disclosed, except to specified persons, including, among others, a party to the proceeding or his or her attorney, a federal or state law enforcement officer, a court employee acting within the scope of his or her duties, a child’s appointed counsel, or any other person upon order of the court for good cause.

This bill would additionally authorize the disclosure of this confidential information to the licensing entity of a child custody evaluator and would prescribe the manner in which the licensing entity is authorized to use the confidential information disclosed to it, as specified.

This bill would make a clarifying change to authorize the disclosure of a child custody evaluator’s written confidential report pursuant to the provisions described begin delete above and would specify that a disclosure to the licensing entity of a child custody evaluator is not an unwarranted disclosure, as specified. end delete begin insert above. end insert The bill would delete an obsolete provision relating to the written statement of issues and contentions put forth by a child’s appointed counsel.

(2) Existing law requires a board, as defined, within the Department of Consumer Affairs, upon receipt of any complaint respecting a begin delete licentiate end delete begin insert licensee end insert , to notify the complainant of the initial and final action taken on his or her complaint, as specified. Existing law requires the board, when it deems appropriate, to notify the person against whom the complaint is made of the nature of the complaint and authorizes the board to request appropriate relief for the complainant and begin insert to end insert meet and confer with the complainant and the begin delete licentiate end delete begin insert licensee end insert in order to mediate the complaint.

This bill would, notwithstanding any other law, require the board, upon receipt of a child custody evaluation report, as specified, to notify the noncomplaining party in the underlying child custody dispute begin insert , end insert who is a subject of that report, of the pending investigation.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 129 of the Business and Professions Code
is amended to read:

129.  

(a) As used in this section, “board” means every board,
bureau, commission, committee begin insert , end insert and similarly constituted agency
in the department begin delete which end delete begin insert that end insert issues licenses.

(b) Each board shall, upon receipt of any complaint respecting
begin delete a licentiate thereof end delete begin insert an individual licensed by the board end insert , notify the
complainant of the initial administrative action taken on his begin insert or her end insert
complaint within 10 days of receipt. Each board shall begin delete thereafter end delete
notify the complainant of the final action taken on his begin insert or her end insert
complaint. There shall be a notification made in every case in
which the complainant is known. If the complaint is not within the
jurisdiction of the board or if the board is unable to dispose
satisfactorily of the complaint, the board shall transmit the
complaint together with any evidence or information it has
concerning the complaint to the agency, public or private, whose
authority in the opinion of the board will provide the most effective
means to secure the relief sought. The board shall notify the
complainant of begin delete such end delete begin insert this end insert action and of any other means begin delete which end delete begin insert that end insert
may be available to the complainant to secure relief.

(c) The board shall, when the board deems it appropriate, notify
the person against whom the complaint is made of the nature of
the complaint, may request appropriate relief for the complainant,
and may meet and confer with the complainant and the begin delete licentiate end delete
begin insert licensee end insert in order to mediate the complaint. Nothing in this
subdivision shall be construed as authorizing or requiring any
board to set or to modify any fee charged by a begin delete licentiate. end delete begin insert licensee. end insert

(d) It shall be the continuing duty of the board to ascertain
patterns of complaints and to report on all actions taken with
respect to begin delete such end delete begin insert those end insert patterns of complaints to the director and to
the Legislature at least once begin delete a end delete begin insert per end insert year. The board shall evaluate
those complaints dismissed for lack of jurisdiction or no violation
and recommend to the director and to the Legislature at least once
begin delete a end delete begin insert per end insert year begin delete such end delete begin insert the end insert statutory changes begin delete as end delete it deems necessary to
implement the board’s functions and responsibilities under this
section.

(e) It shall be the continuing duty of the board to take whatever
action it deems necessary, with the approval of the director, to
inform the public of its functions under this section.

(f) Notwithstanding any other law, upon receipt of a child
custody evaluation report submitted to a court pursuant to Chapter
6 (commencing with Section 3110) of Part 2 of Division 8 of the
Family Code, the board shall notify the noncomplaining party in
the underlying custody dispute begin insert , end insert who is a subject of that report, of
the pending investigation.

SEC. 2.  

Section 3025.5 of the Family Code is amended to read:

3025.5.  

(a) In a proceeding involving child custody or
visitation rights, if a report containing psychological evaluations
of a child or recommendations regarding custody of, or visitation
with, a child is submitted to the court, including, but not limited
to, a report created pursuant to Chapter 6 (commencing with
Section 3110) of this part and a recommendation made to the court
pursuant to Section 3183, that information shall be contained in a
document that shall be placed in the confidential portion of the
court file of the proceeding, and may not be disclosed, except to
the following persons:

(1) A party to the proceeding and his or her attorney.

(2) A federal or state law enforcement officer, the licensing
entity of a child custody evaluator, a judicial officer, court
employee, or family court facilitator of the superior court of the
county in which the action was filed, or an employee or agent of
that facilitator, acting within the scope of his or her duties.

(3) Counsel appointed for the child pursuant to Section 3150.

(4) Any other person upon order of the court for good cause.

(b) Confidential information contained in a report prepared
pursuant to Section 3111 that is disclosed to the licensing entity
of a child custody evaluator pursuant to subdivision (a) shall remain
confidential and shall only be used for purposes of investigating
allegations of unprofessional conduct by the child custody
evaluator, or in a criminal, civil, or administrative proceeding
involving the child custody evaluator. All confidential information begin insert , end insert
including, but not limited to, the identity of any minors begin insert , end insert shall retain
their confidential nature in any criminal, civil, or administrative
proceeding resulting from the investigation of unprofessional
conduct and shall be sealed at the conclusion of the proceeding
and shall not subsequently be released. Names that are confidential
shall be listed in attachments separate from the general pleadings.
If the confidential information does not result in a criminal, civil,
or administrative proceeding, it shall be sealed after the licensing
entity decides that no further action will be taken in the matter of
suspected licensing violations.

SEC. 3.  

Section 3111 of the Family Code is amended to read:

3111.  

(a) 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. The child custody
evaluation shall be conducted in accordance with the standards
adopted by the Judicial Council pursuant to Section 3117, and all
other standards adopted by the Judicial Council regarding child
custody evaluations. If directed by the court, the court-appointed
child custody evaluator shall file a written confidential report on
his or her evaluation. At least 10 days before any hearing regarding
custody of the child, the report shall be filed with the clerk of the
court in which the custody hearing will be conducted and served
on the parties or their attorneys, and any other counsel appointed
for the child pursuant to Section 3150. The report may be
considered by the court.

(b) The report shall not be made available other than as provided
in subdivision (a) or Section 3025.5, or as described in Section
204 of the Welfare and Institutions Code or Section 1514.5 of the
Probate Code. Any information obtained from access to a juvenile
court case file, as defined in subdivision (e) of Section 827 of the
Welfare and Institutions Code, is confidential and shall only be
disseminated as provided by paragraph (4) of subdivision (a) of
Section 827 of the Welfare and Institutions Code.

(c) The report may be received in evidence on stipulation of all
interested parties and is competent evidence as to all matters
contained in the report.

(d) If the court determines that an unwarranted disclosure of a
written confidential report has been made, the court may impose
a monetary sanction against the disclosing party. The sanction
shall be in an amount sufficient to deter repetition of the conduct,
and may include reasonable attorney’s fees, costs incurred, or both,
unless the court finds that the disclosing party acted with substantial
justification or that other circumstances make the imposition of
the sanction unjust. The court shall not impose a sanction pursuant
to this subdivision that imposes an unreasonable financial burden
on the party against whom the sanction is imposed. This
subdivision shall become operative on January 1, 2010.

(e) The Judicial Council shall, by January 1, 2010, do the
following:

(1) Adopt a form to be served with every child custody
evaluation report that informs the report recipient of the
confidentiality of the report and the potential consequences for the
unwarranted disclosure of the report.

(2) Adopt a rule of court to require that, when a court-ordered
child custody evaluation report is served on the parties, the form
specified in paragraph (1) shall be included with the report.

(f) For purposes of this section, a disclosure is unwarranted if
it is done either recklessly or maliciously, and is not in the best
interests of the child.

begin delete

(g) For purposes of this section, a disclosure of the confidential
written report to the licensing entity of a child custody evaluator
is not an unwarranted disclosure.

end delete