Existing law authorizes the court in a child custody proceeding to permit testimony by telephone, audiovisual means, or other electronic means when a witness or party resides in another state. Existing law also requires a court to permit a party to present testimony and participate in court-ordered child custody mediation by electronic means when the partys military deployment has a material effect on his or her ability to appear in person, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

This bill would require the court to allow a party whose deportation or detention by the federal Department of Homeland Security materially effects his or her ability to appear in person at a child custody proceeding to present testimony and evidence and participate in mandatory child custody mediation by electronic means, including telephone, video teleconferencing, or other means, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

Existing law authorizes the court in a child custody proceeding to permit testimony by telephone, audiovisual means, or other electronic means when a witness or party resides in another state. Existing law also requires a court to permit a party to present testimony and participate in court-ordered child custody mediation by electronic means when the partys military deployment has a material effect on his or her ability to appear in person, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

This bill would require the court to allow a party whose deportation or detention by the federal Department of Homeland Security materially effects his or her ability to appear in person at a child custody proceeding to present testimony and evidence and participate in mandatory child custody mediation by electronic means, including telephone, video teleconferencing, or other means, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

Existing law authorizes the court in a child custody proceeding to permit testimony by telephone, audiovisual means, or other electronic means when a witness or party resides in another state. Existing law also requires a court to permit a party to present testimony and participate in court-ordered child custody mediation by electronic means when the partys military deployment has a material effect on his or her ability to appear in person, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

This bill would require the court in a child custody proceeding to allow any a party whose deportation or detention by the federal Department of Homeland Security materially effects his or her ability to appear in person at a child custody proceeding to present testimony and evidence and participate in court-ordered mandatory child custody mediation by electronic means, including telephone, video teleconferencing, or the Internet, consistent with other means, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

Existing law authorizes the court in a child custody proceeding to permit testimony by telephone, audiovisual means, or other electronic means when a witness or party resides in another state. Existing law requires a court to permit a party to present testimony and participate in court-ordered child custody mediation by electronic means when the partys military deployment has a material effect on his or her ability to appear in person, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

This bill would require the court in a child custody proceeding to allow any party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including telephone, video teleconferencing, or the Internet, consistent with the due process rights of all parties.

 THIRD READING  

Bill No: AB 365

Author: Cristina Garcia (D)

Amended: 3/11/15 in Assembly

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 6/9/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 73-1, 4/23/15 - See last page for vote

SUBJECT: Child custody proceedings: testimony by electronic means

SOURCE: Author

DIGEST: This bill requires the court to allow a party, whose deportation or detention by the federal Department of Homeland Security materially affects his or her ability to appear at a child custody proceeding, to present testimony and evidence, and participate in mandatory child custody mediation, by electronic means.

ANALYSIS:

Existing law:

1. Provides that if a party’s military deployment, mobilization, or temporary duty will have a material effect on his or her ability to appear in person at a regularly scheduled custody hearing, the court shall, upon motion of the party:

• Hold an expedited hearing to determine custody and visitation issues prior to the party’s departure; or

• Allow the party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the Internet, to the extent that this technology is reasonably available to the court and the due process rights of all parties are protected. (Fam. Code Sec. 3047.)

2. Requires the court to set contested custody or visitation matters for mediation, and allows mediators, consistent with local rules, to submit recommendations to the court. (Fam. Code Secs. 3170, 3183.)

3. Requires the court to order reasonable reunification services to assist parents who have been incarcerated, institutionalized, detained, or deported including contacting welfare authorities in a deported parent’s country of origin, to identify any available services that would substantially comply with a juvenile court case plan requirement, document parents’ participation in those services, and accept reports from local child welfare authorities as to the parents’ living situation, progress and participation in services. (Welf. & Inst. Code Sec. 361.5(e).)

4. Allows the court to permit parties to appear by telephone in family law cases if the court determines that telephonic appearance is appropriate, and allows parties in civil cases to appear by telephone, as specified. (Cal. Rules of Court 5.9, 3.670.)

This bill:

1. Requires the court to allow a party to present testimony and evidence, and participate in mandatory child custody mediation by electronic means if the party’s deportation or detention by the United States Immigration and Customs Enforcement will have a material effect on his or her ability, or anticipated ability, to appear in person at a child custody proceeding.

2. Specifies that “electronic means” includes, but is not limited to, telephone, video teleconferencing, or other electronic means that provide remote access to the hearing, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

Background

Courts must generally order social workers to provide services to reunify a family if the parent has not voluntarily relinquished his or her parental rights. (Welf. & Inst. Code Sec. 360(a).) Reunification plans must be appropriate and based on the unique facts of the family. If parents successfully complete the reunification plan, and reunification is in the best interest of the child, children are typically released to the custody of the parent. In 2008, California expanded this concept of tailoring reunification plans to the unique facts of each family when it enacted AB 2070 (Bass, Chapter 482, Statutes of 2008). AB 2070 required that courts take into consideration, among other factors, the particular barriers incarcerated and/or institutionalized parents encounter in accessing court-mandated reunification services, including parent-child bonding and the likelihood of the parent’s discharge within the reunification timeframe.

Service members, who are often unable to participate in contested custody and visitation proceedings due to deployment, have also been given certain protections under both federal and state law. SB 1082 (Morrow and Ducheny, Chapter 154, Statutes of 2005) created an expedited process for the modification of child support orders for service members who are deployed out-of-state. AB 2416 (Cook, Chapter 466, Statutes of 2010) further added to those protections by authorizing a court to allow a deployed parent to participate in child custody proceedings and mediation by electronic means.

Similar to AB 2416, this bill helps ensure that detained and/or deported parents are able to participate in custody proceedings and mediation by allowing them to participate by electronic means.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 6/22/15)

Association of Family & Conciliation Courts

California Communities United Institute

California Partnership to End Domestic Violence

First Focus Campaign for Children

National Association of Social Workers – California Chapter

Service Employees International Union

OPPOSITION: (Verified 6/22/15)

None received

ARGUMENTS IN SUPPORT: In support, the Association of Family and Conciliation Courts writes “existing law currently gives the court the authority to allow parties to appear by phone or other electronic means where warranted and feasible. This bill would require the court to allow such electronic participation in dire situations involving detention and possible deportation. We believe this is appropriate and can assist these families in adequately moving through the custody process.”

ASSEMBLY FLOOR: 73-1, 4/23/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Brough

NO VOTE RECORDED: Campos, Beth Gaines, Jones, Melendez, Obernolte, Salas

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

6/22/15 14:30:48

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 365 (Author:Cristina Garcia)

Version: March 11, 2015

Hearing Date: June 9, 2015

Fiscal: Yes

Urgency: No

Consultant: NR

SUBJECT

Child custody proceedings: testimony by electronic means

DESCRIPTION

This bill would require the court to allow a party, whose deportation or detention by the federal Department of Homeland Security materially affects his or her ability to appear at a child custody proceeding, to present testimony and evidence, and participate in mandatory child custody mediation, by electronic means.

BACKGROUND

Courts must generally order social workers to provide services to reunify a family if the parent has not voluntarily relinquished his or her parental rights. (Welf. & Inst. Code Sec. 360(a).) Reunification plans must be appropriate and based on the unique facts of the family. If parents successfully complete the reunification plan, and reunification is in the best interest of the child, children are typically released to the custody of the parent. In 2008, California expanded this concept of tailoring reunification plans to the unique facts of each family when it enacted AB 2070 (Bass, Chapter 482, Statutes of 2008). AB 2070 required that courts take into consideration, among other factors, the particular barriers incarcerated and/or institutionalized parents encounter in accessing court-mandated reunification services, including parent-child bonding and the likelihood of the parent’s discharge within the reunification timeframe.

Service members, who are often unable to participate in contested custody and visitation proceedings due to deployment, have also been given certain protections under both federal and state law. SB 1082 (Morrow and Ducheny, Chapter 154, Statutes of 2005) created an expedited process for the modification of child support orders for service members who are deployed out-of-state. AB 2416 (Cook, Chapter 466, Statutes of 2010) further added to those protections by authorizing a court to allow a deployed parent to participate in child custody proceedings and mediation by electronic means.

Similar to AB 2416, this bill would help ensure that detained and/or deported parents are able to participate in custody proceedings and mediation by allowing them to participate by electronic means.

CHANGES TO EXISTING LAW

Existing law provides that if a party’s military deployment, mobilization, or temporary duty will have a material effect on his or her ability to appear in person at a regularly scheduled custody hearing, the court shall, upon motion of the party:

• hold an expedited hearing to determine custody and visitation issues prior to the party’s departure; or

• allow the party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the Internet, to the extent that this technology is reasonably available to the court and the due process rights of all parties are protected. (Fam. Code Sec. 3047.)

Existing law requires the court to set contested custody or visitation matters for mediation, and allows mediators, consistent with local rules, to submit recommendations to the court. (Fam. Code Secs. 3170, 3183.)

Existing law requires the court to order reasonable reunification services to assist parents who have been incarcerated, institutionalized, detained, or deported including contacting welfare authorities in a deported parent’s country of origin, to identify any available services that would substantially comply with a juvenile court case plan requirement, document parents’ participation in those services, and accept reports from local child welfare authorities as to the parents’ living situation, progress and participation in services. (Welf. & Inst. Code Sec. 361.5(e).)

Existing law allows the court to permit parties to appear by telephone in family law cases if the court determines that telephonic appearance is appropriate, and allows parties in civil cases to appear by telephone, as specified. (Cal. Rules of Court 5.9, 3.670.)

This bill would require the court to allow a party to present testimony and evidence, and participate in mandatory child custody mediation by electronic means if the party’s deportation or detention by the United States Immigration and Customs Enforcement will have a material effect on his or her ability, or anticipated ability, to appear in person at a child custody proceeding.

This bill would specify that “electronic means” includes, but is not limited to, telephone, video teleconferencing, or other electronic means that provide remote access to the hearing, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

COMMENT

1. Stated need for the bill

According to the author:

Teleconferencing and other electronic means are permitted during child custody proceedings when a party is in another state or a party’s military deployment impacts their ability to appear in person. However it is not currently done across the state for detained or deported parents. While some counties provide these services, in others the detained or deported parent does not have a viable way to be present at court.  This increases the chance that the parent will lose custody of their child. What is missing is equal access across the state to testimony by electronic means for parents who cannot be physically present in the court due to being detained or deported. AB 365 would require the courts to allow any detained or deported parent to present testimony and evidence by electronic means in contested child custody hearings and in court-ordered child custody mediations, upon request.  Electronic means includes telephone, video conferencing, or the internet, provided that their use is consistent with the due process right of all parties.

2. Would provide detained and deported parents with additional options to participate in custody proceedings

When a parent cannot participate in a child custody proceeding because he or she has been detained or deported, the court may (1) postpone the proceeding, (2) hold the proceeding in the parent’s absence, or (3) allow the parent to participate via telephone. To ensure that those parents have the ability to participate, this bill would require courts to allow the proceeding to take place by electronic means, such as telephone or video conferencing. In order to ensure that courts are able to comply with this requirement, this bill would only allow participation by electronic means if the technology is reasonably available to the court, and would require that the electronic participation method protects the due process rights of all parties. This is identical to an option available to deployed military parents created by AB 2416 (Cook, Chapter 466, Statutes of 2010).

In support, the Service Employees International Union SEIU writes, “Testimony by electronic means is already available in many states, as well as eleven counties in California. Further, teleconferencing and other electronic means are permitted during child custody proceedings when a party is in another state or a party’s military deployment impacts their ability to appear in person. AB 365 merely extends equal access for parents who cannot be physically present in court due to being detained or deported. AB 365 would bridge the gap in current law, preventing families from being split unnecessarily.”

3. Consistent with policy to preserve parent-child relationships

This bill would allow parents who have been detained or deported to participate in child custody proceedings through electronic means. This is consistent with legislation enacted to ensure that parents who are unable to be physically present in court (e.g., deployed, incarcerated, and out-of-state parents) to nonetheless meaningfully participate in child custody proceedings. Without the ability to participate in these proceedings, the chance that a parent will lose custody of his or her child increases significantly because the court is unable to hear that parent’s perspective.

In support, the Association of Family and Conciliation Courts writes “existing law currently gives the court the authority to allow parties to appear by phone or other electronic means where warranted and feasible. This bill would require the court to allow such electronic participation in dire situations involving detention and possible deportation. We believe this is appropriate and can assist these families in adequately moving through the custody process.”

Support: Association of Family & Conciliation Courts (AFCC); California Communities United Institute; California Partnership to End Domestic Violence; First Focus Campaign for Children; National Association of Social Workers – California Chapter; Service Employees International Union (SEIU)

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation:

SB 1064 (De Leon, Chapter 845, Statues of 2012), created uniform statewide policies and practices that sought to eliminate family reunification barriers in the child welfare system for immigrant families.

AB 2416 (Cook, Chapter 466, Statutes of 2010) allowed for electronic access to family law proceedings by deployed military members who might not otherwise be able to participate in their children's custody cases because of deployment.

SB 1082 (Morrow and Ducheny, Chapter 154, Statutes of 2005) See Background.

Prior Vote:

Assembly Floor (Ayes 73, Noes 1)

Assembly Appropriations Committee (Ayes 16, Noes 0)

Assembly Judiciary Committee (Ayes 9, Noes 1)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 365

Author:(Cristina Garcia)

As Amended Ver:March 11, 2015

Majority vote

SUMMARY: Permits immigrant parents who have been detained or deported to participate in their children's custody proceedings through electronic means. Specifically, this bill:

1. Provides that if a party is either detained by Immigration and Customs Enforcement or has been deported and that such detention or deportation will have a material effect on that party's ability to appear in person at a child custody proceeding, the court shall, on the party's motion, allow that party to present testimony and evidence, and participate in mandatory child custody mediation by electronic means to the extent: a) the technology is reasonably available to the court, and b) the due process rights of all parties are protected.

2. Defines "electronic means" to include, but not be limited to, telephone, video teleconferencing, or other electronic means of providing remote access.

3. Provides that 1) above, does not authorize use of electronic recording for purposes of taking official record of the proceedings.

EXISTING LAW:

1. Establishes an order of preference to be used when determining custody of a child. Preference is first for one or both of the parents, then to the person in whose home the child has been living, and then to any other person the court deems to be suitable. States that a relative's immigration status does not disqualify the relative from receiving custody of a child in a family law proceeding.

2. Provides that if a party's military deployment, mobilization, or temporary duty will have a material effect on his or her ability to appear in person at a regularly scheduled custody hearing, the court shall, upon motion of the party, do either of the following:

   1. Hold an expedited hearing to determine custody and visitation issues prior to the party's departure.

   2. Allow the party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the Internet, to the extent that this technology is reasonably available to the court and the due process rights of all parties are protected.

3. Requires the court to set contested custody or visitation matters for mediation. Allows mediators, consistent with local rules, to submit recommendations to the court, in which case the mediation is referred to as "child custody recommended counseling," but still considered part of mandated child custody mediation.

4. Directs the court to provide reasonable efforts to assist parents who have been deported to contact child welfare authorities in their country of origin, identify any available services that would substantially comply with a juvenile court case plan requirement, document parents' participation in those services, and accept reports from local child welfare authorities as to the parents’ living situation, progress and participation in services.

5. Allows the court to permit parties to appear by telephone in family law cases if the court determines that telephonic appearance is appropriate. More generally, allows parties in civil cases to appear by telephone, as provided. (California Rules of Court, Rules 5.9, 3.670.)

FISCAL EFFECT: According to the Assembly Appropriations Committee, minor and absorbable General Fund court costs.

COMMENTS: Immigration laws attempt to keep families together, whether or not parents are deported. Child welfare policies also strive for family reunification. This bill helps to ensure that child custody proceedings can do the same, by reducing barriers faced by detained or deported parents who are involved with a family law case in California. This bill is modeled after AB 2416 (Cook), Chapter 466, Statutes of 2010, which allowed for electronic access to family law proceedings by deployed military members who, because of their deployment, might not otherwise be able to participate in their children's custody cases.

To Prevent a Miscarriage of Justice in Their Absence, Military Personnel Are Protected by the Federal Servicemembers Civil Relief Act and California Law. In 2003 and again in 2008, Congress updated the former Soldiers' and Sailors' Civil Relief Act, and enacted the new Servicemembers Civil Relief Act (SCRA), "to enable [service members] to devote their entire energy to the defense needs of the Nation; and to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service." (50 United States Code Appendix Section 502.) The SCRA, among other things, prohibits default actions against service members deployed out of the United States, limits the amount of interest that may be assessed on debts that accrued prior to deployment, and requires a stay of proceedings if the service member's military duty materially affects his or her ability to appear.

In order to protect the custodial rights of deployed and military parents, California law provides that if the military parent's deployment will have a material effect on his or her ability to appear in person at a regularly scheduled custody hearing, the court must, on motion of that parent, either hold an expedited hearing before the deployment or allow that parent to participate in the proceeding by electronic means, to the extent that the technology is reasonably available to the court and the due process rights of all parties are protected. This helps ensures that a deployed military parent's custodial rights are protected.

This Bill Provides Similar Protection for Parents Who Cannot Participate in Person in Their Child Custody Proceedings Because They Have Been Detained or Deported. Under current law, if a parent cannot participate in a child custody proceeding because he or she has been detained or deported, the proceedings can either occur in the parent’s absence or be postponed or, if the court allows, proceed via telephone. Often, none of these options are best, not only for the parent but also for the child. This bill provides an additional third alternative identical to the one currently available to deployed military parents: allowing the parent to participate in the court proceedings through electronic means. While in-person participation is always the best option, for those parents who cannot be in court due to no fault of their own, this alternative allows the proceeding to continue and still allows the parent to participate.

In order to ensure that the courts can comply, this bill, like the deployed military parent statute, only permits participation by electronic means to the extent the technology is reasonably available in the court. Most importantly, and again consistent with the deployed parent statute, this bill requires that the alternative electronic participation method must protect the due process rights of all parties. This ensures that the rights of all parties to the action are protected, while still allowing the detained or deported parent a way to participate in the action.

This Bill is Consistent with 2010 Legislation to Eliminate Family Reunification Barriers for Immigrant Families with Children in the Child Welfare System. This bill continues recent legislative action to assist immigrant families with children. In particular, the Legislature addressed the problem of detained or deported parents whose children become part of the child welfare system as a result of their detention or deportation. These parents often cannot complete necessary reunification activities within the timeframe required. If children of these parents are not taken in by relatives, they may remain in the foster care system with strangers and their parents’ rights may be terminated. SB 1064 (De León), Chapter 845, Statutes of 2012, created uniform, statewide policies and practices that sought to eliminate family reunification barriers in the child welfare system for immigrant families.

This bill is consistent with that legislation by helping ensure that immigrant parents can still participate in their children's custody proceedings even if they cannot physically be in court, thus seeking to preserve immigrant families.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000141

Date of Hearing: April 15, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 365

Author:(Cristina Garcia) – As Amended Ver:March 11, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the court to allow immigrant parents who have been detained or deported to participate in their children's custody proceedings through electronic means. Specifically, this bill:

1. Provides that if a party is either detained by Immigration and Customs Enforcement or has been deported and that such detention or deportation will have a material effect on that party's ability to appear in person at a child custody proceeding, the court must allow that party, upon motion of the party, to present testimony and evidence, and participate in mandatory child custody mediation by electronic means, as defined, if the technology is reasonably available to the court, and the due process rights of all parties are protected.

2. Specifies that this bill does not authorize the use of electronic recording for purposes of taking official record of the proceedings.

FISCAL EFFECT:

Minor and absorbable General Fund court costs.

COMMENTS:

1. Purpose. According to the author, immigration laws attempt to keep families together, whether or not parents are deported. Child welfare policies also strive for family reunification. This bill helps to ensure that child custody proceedings can do the same, by reducing barriers faced by detained or deported parents who are involved with a family law case in California.

2. Background. This bill is modeled after AB 2416 (Cook), Chap. 466, Stats. 2010, which, in part, allowed for electronic access to family law proceedings by deployed military members who, because of their deployment, might not otherwise be able to participate in their children's custody cases.

Existing law provides that if a parent cannot participate in a child custody proceeding because he or she has been detained or deported, the proceedings can either occur in the parent’s absence or be postponed or, if the court allows, proceed via telephone. This bill provides an additional alternative similar to the one currently available to deployed military parents. In order to ensure that the courts can comply, this bill, like the deployed military parent statute, only permits participation by electronic means to the extent the technology is reasonably available in the court. Also consistent with the deployed parent statute, this bill requires that the alternative electronic participation method must protect the due process rights of all parties.

3. Prior Legislation.

1. SB 1064 (de Leon), Chapter 845, Statues of 2012, created uniform statewide policies and practices that sought to eliminate family reunification barriers in the child welfare system for immigrant families.

2. AB 2416 (Cook), Chapter 466, Statutes of 2010, allowed for electronic access to family law proceedings by deployed military members who might not otherwise be able to participate in their children's custody cases because of deployment.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: March 24, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 365

Author:(Cristina Garcia) – As Amended Ver:March 11, 2015

SUBJECT: Child custody proceedings: testimony by electronic means

KEY ISSUE: IN ORDER TO HELP PRESERVE FAMILIES, SHOULD PARENTS WHO HAVE BEEN DETAINED OR DEPORTED BE PERMITTED TO PARTICIPATE IN THEIR CHILDREN'S CUSTODY PROCEEDINGS THROUGH ELECTRONIC MEANS, CONSISTENT WITH THE DUE PROCESS RIGHTS OF ALL PARTIES?

SYNOPSIS

All too often when immigrant parents are detained or deported by Immigration and Customs Enforcement, they are, by virtue of their detainment or deportation alone, prevented from participating in their children's custody proceedings. Parents, children and the court system all benefit when parents can participate in their family law proceedings, particularly those that involve their children. This bill seeks to reduce barriers faced by detained or deported immigrant parents who are involved with a family law case in California by permitting these parents to participate in their children's custody proceedings through electronic means. This bill is modeled after AB 2416 (Cook), Chap. 466, Stats. 2010, which allowed for electronic access to family law courts by deployed military members who might not be able to participate in their children's custody cases because of deployment. This bill is supported by California Communities United Institute and Service Employees International Union, and supported, if amended, by the Family Law Section of the State Bar if expanded to cover all parents who cannot attend their family law proceedings. There is no opposition on file.

SUMMARY: Permits immigrant parents who have been detained or deported to participate in their children's custody proceedings through electronic means. Specifically, this bill:

1. Provides that if a party is either detained by Immigration and Customs Enforcement or has been deported and that such detention or deportation will have a material effect on that party's ability to appear in person at a child custody proceeding, the court shall, on the party's motion, allow that party to present testimony and evidence, and participate in mandatory child custody mediation by electronic means to the extent: (a) the technology is reasonably available to the court, and (b) the due process rights of all parties are protected.

2. Defines "electronic means" to include, but not be limited to, telephone, video teleconferencing, or other electronic means of providing remote access.

3. Provides that # 1), above, does not authorize use of electronic recording for purposes of taking official record of the proceedings.

EXISTING LAW:

1. Establishes an order of preference to be used when determining custody of a child. Preference is first for one or both of the parents, then to the person in whose home the child has been living, and then to any other person the court deems to be suitable. States that a relative’s immigration status does not disqualify the relative from receiving custody of a child in a family law proceeding. (Family Code Section 3040. Unless stated otherwise, all further references are to that code.)

2. Provides that if a party’s military deployment, mobilization, or temporary duty will have a material effect on his or her ability to appear in person at a regularly scheduled custody hearing, the court shall, upon motion of the party, do either of the following:

   1. Hold an expedited hearing to determine custody and visitation issues prior to the party's departure.

   2. Allow the party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the Internet, to the extent that this technology is reasonably available to the court and the due process rights of all parties are protected. (Section 3047.)

3. Requires the court to set contested custody or visitation matters for mediation. Allows mediators, consistent with local rules, to submit recommendations to the court, in which case the mediation is referred to as "child custody recommended counseling," but still considered part of mandated child custody mediation. (Sections 3170, 3183.)

4. Directs the court to provide reasonable efforts to assist parents who have been deported to contact child welfare authorities in their country of origin, identify any available services that would substantially comply with a juvenile court case plan requirement, document parents’ participation in those services, and accept reports from local child welfare authorities as to the parents’ living situation, progress and participation in services. (Welfare & Institutions Code Section 361.5(e).)

5. Allows the court to permit parties to appear by telephone in family law cases if the court determines that telephonic appearance is appropriate. More generally, allows parties in civil cases to appear by telephone, as provided. (California Rules of Court, Rules 5.9, 3.670.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Immigration laws attempt to keep families together, whether or not parents are deported. Child welfare policies also strive for family reunification. This bill helps to ensure that child custody proceedings can do the same, by reducing barriers faced by detained or deported parents who are involved with a family law case in California. This bill is modeled after AB 2416 (Cook), Chap. 466, Stats. 2010, which allowed for electronic access to family law proceedings by deployed military members who, because of their deployment, might not otherwise be able to participate in their children's custody cases.

To Prevent a Miscarriage of Justice in Their Absence, Military Personnel Are Protected by the Federal Servicemembers Civil Relief Act and California Law: In 2003 and again in 2008, Congress updated the former Soldiers' and Sailors' Civil Relief Act, and enacted the new Servicemembers Civil Relief Act (SCRA), "to enable [service members] to devote their entire energy to the defense needs of the Nation; and to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service." (50 U.S.C. Appendix Section 502.) The SCRA, among other things, prohibits default actions against service members deployed out of the United States, limits the amount of interest that may be assessed on debts that accrued prior to deployment, and requires a stay of proceedings if the service member's military duty materially affects his or her ability to appear.

In order to protect the custodial rights of deployed and military parents, California law provides that if the military parent's deployment will have a material effect on his or her ability to appear in person at a regularly scheduled custody hearing, the court must, on motion of that parent, either hold an expedited hearing before the deployment or allow that parent to participate in the proceeding by electronic means, to the extent that the technology is reasonably available to the court and the due process rights of all parties are protected. This helps ensures that a deployed military parent's custodial rights are protected.

This Bill Provides Similar Protection for Parents Who Cannot Participate in Person in Their Child Custody Proceedings Because They Have Been Detained or Deported: Under current law, if a parent cannot participate in a child custody proceeding because he or she has been detained or deported, the proceedings can either occur in the parent’s absence or be postponed or, if the court allows, proceed via telephone. Often, none of these options are best, not only for the parent but also for the child. This bill provides an additional third alternative identical to the one currently available to deployed military parents: allowing the parent to participate in the court proceedings through electronic means. While in-person participation is always the best option, for those parents who cannot be in court due to no fault of their own, this alternative allows the proceeding to continue and still allows the parent to participate.

In order to ensure that the courts can comply, this bill, like the deployed military parent statute, only permits participation by electronic means to the extent the technology is reasonably available in the court. Most importantly, and again consistent with the deployed parent statute, this bill requires that the alternative electronic participation method must protect the due process rights of all parties. This ensures that the rights of all parties to the action are protected, while still allowing the detained or deported parent a way to participate in the action.

This Bill is Consistent with 2010 Legislation to Eliminate Family Reunification Barriers for Immigrant Families with Children in the Child Welfare System: This bill continues recent legislative action to assist immigrant families with children. In particular, the Legislature addressed the problem of detained or deported parents whose children become part of the child welfare system as a result of their detention or deportation. These parents often cannot complete necessary reunification activities within the timeframe required. If children of these parents are not taken in by relatives, they may remain in the foster care system with strangers and their parents’ rights may be terminated. SB 1064 (de León), Chap. 845, Stats. 2012, created uniform, statewide policies and practices that sought to eliminate family reunification barriers in the child welfare system for immigrant families.

This bill is consistent with that legislation by helping ensure that immigrant parents can still participate in their children's custody proceedings even if they cannot physically be in court, thus seeking to preserve immigrant families.

Family Law Section of the State Bar Supports the Bill if Amended to Expand Electronic Access: The Family Law Section of the State Bar (the Section) supports the bill, if amended in several ways. First and foremost, the Section would like the bill broadened to include "all circumstances where a parent is unable to appear personally for reasons outside the parent's control." Parties today already have the ability to appear telephonically in family law proceedings, as provided by rule of court, if the court determines that such appearance is appropriate. Expanding the mandate that parties must be able to appear electronically this broadly could raise logistical and practical concerns for the court. It may make more sense to see how the mandated expansion works for the limited group of immigrant families, before seeking a further mandated expansion. The Section also, among other things, requests that the bill be expanded to allow electronic participation not just for mediation, but also for "recommending counseling." However, "mandatory child custody mediation," as used in the bill, already encompasses "recommending counseling," so the proposed change is not needed.

REGISTERED SUPPORT / OPPOSITION:

Support

California Communities United Institute

Family Law Section of the State Bar (if amended)

Service Employees International Union

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334