Existing law requires a family court to determine the best interests of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether either of the childs parents habitually or continually uses alcohol or illegal drugs.

This bill would require the court to make the determination consistent with specified findings. The bill would include in those findings that children have the right to be safe and free from abuse and that domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

Existing law establishes a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence against the other party seeking custody of the child or against the child or the childs siblings within the previous five years is detrimental to the best interests of the child. In overcoming that presumption, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship. The bill would require the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests of the child and would specify additional factors that, on balance, are required to support the grant of custody. The bill would require the court to state its reasons for finding that the presumption has been overcome in writing or on the record.

Existing law requires a court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.

This bill, instead, would require the court to grant reasonable visitation rights when it is shown that the visitation would be in the best interest of the child, as defined, and consistent with the above provisions for ordering custody.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction in all aspects of domestic violence.

This bill would require the training to include the detriment to children of residing in a home with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

Existing law requires a family court to determine the best interests of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether either of the childs parents habitually or continually uses alcohol or illegal drugs.

This bill would require the court to make the determination consistent with specified findings. The bill would include in those findings that children have the right to be safe and free from abuse and that domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

Existing law establishes a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence against the other party seeking custody of the child or against the child or the childs siblings within the previous five years is detrimental to the best interests of the child. In overcoming that presumption, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship. The bill would require the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests of the child and would specify additional factors that, on balance, are required to support the grant of custody. The bill would require the court to state its reasons for finding that the presumption has been overcome in writing or on the record.

Existing law requires a court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.

This bill, instead, would require the court to grant reasonable visitation rights when it is shown that the visitation would be in the best interest of the child, as defined, and consistent with the above provisions for ordering custody.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction in all aspects of domestic violence.

This bill would require the training to include the detriment to children of residing in a home with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

Existing law requires a family court to determine the best interests of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether either of the childs parents habitually or continually uses alcohol or illegal drugs.

This bill would require the court to make the determination consistent with specified findings. The bill would include in those findings that children have the right to be safe and free from abuse and that domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

Existing law establishes a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence against the other party seeking custody of the child or against the child or the childs siblings within the previous five years is detrimental to the best interests of the child. In overcoming that presumption, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship. The bill would require the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests of the child and would specify additional factors that, on balance, are required to support the grant of custody. The bill would require the court to state its reasons for finding that the presumption has been overcome in writing or on the record.

Existing law requires a court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.

This bill, instead, would require the court to grant reasonable visitation rights when it is shown that the visitation would be in the best interest of the child, as defined, and consistent with the above provisions for ordering custody.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction in all aspects of domestic violence.

This bill would require the training to include the detriment to children of residing in a home with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

Existing law requires a family court to determine the best interests of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether either of the childs parents habitually or continually uses alcohol or illegal drugs.

This bill would require the court to make the determination consistent with specified findings. The bill would include in those findings that children have the right to be safe and free from abuse and that domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

Existing law establishes a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence against the other party seeking custody of the child or against the child or the childs siblings within the previous five years is detrimental to the best interests of the child. In overcoming that presumption, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship in the previous 5 years and would make the presumption and the provisions for overcoming the presumption applicable to parties seeking visitation. relationship. The bill would require the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody, or unsupervised visitation, custody of a child to the perpetrator is in the best interests of the child and would specify additional factors that, on balance, are required to support the grant of custody or visitation. custody. The bill would require the court to state its reasons for finding that the presumption has been overcome in writing or on the record.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction in all aspects of domestic violence.

This bill would require the training to include the detriment to children of residing in a home where domestic violence occurs. with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

Existing law requires a family court to determine the best interests of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether either of the childs parents habitually or continually uses alcohol or illegal drugs.

Existing law establishes a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence, as specified, violence against the other party seeking custody of the child or against the child or the childs siblings within the previous five years is detrimental to the best interests of the child. In overcoming that presumption, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would require, in considering the factors for a child custody determination, or in overcoming the presumption against the award of sole or joint legal or physical custody to a person who has perpetrated domestic violence, that the safety of the child have priority over all other considerations. extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship in the previous 5 years and would make the presumption and the provisions for overcoming the presumption applicable to parties seeking visitation. The bill would require the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody, or unsupervised visitation, of a child to the perpetrator is in the best interests of the child and would specify additional factors that, on balance, are required to support the grant of custody or visitation. The bill would require the court to state its reasons for finding that the presumption has been overcome in writing or on the record.

Existing law requires a family court to determine the best interests of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including whether either of the childs parents habitually or continually uses alcohol or illegal drugs.

Existing law establishes a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence, as specified, is detrimental to the best interests of the child. In overcoming that presumption, existing law requires the court to consider specified factors, including whether the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would require, in considering the factors for a child custody determination, or in overcoming the presumption against the award of sole or joint legal or physical custody to a person who has perpetrated domestic violence, that the safety of the child have priority over all other considerations.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2044

Author:(Mark Stone)

As Amended Ver:August 16, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Clarifies the best interests determination for child custody and legislative findings and declarations on child custody, and strengthens the presumption against custody to a perpetrator of domestic violence. Specifically, this bill:

1. Requires the court, when making a best interests of the child determination in a custody or visitation case, to make the decision consistent with the revised legislative findings and declarations that: a) the health, safety, and welfare of the child is the court's primary concern when determining the best interests of the child, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child; and b) a child should have frequent and continuing contact with both parents; but when a) and b), above, are in conflict, requires any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
2. Allows a court to require independent corroboration of an allegation of abuse, as opposed to substantial independent corroboration.
3. Finds and declares that children have the right to be free from abuse and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
4. Adds the following to the presumption against custody to a party that a court finds has perpetrated domestic violence within the previous five years:
   1. Extension of the presumption to a party who has committed domestic violence against a parent, current spouse or cohabitant, or person in dating or engagement relationship;
   2. Permitting the presumption against custody to be overcome if both:
      1. It is in the best interests of the child to allow such contact; and
      2. On balance, the other existing factors support such contact;
   3. Requiring the court, if it finds that the presumption has been overcome, to state its reasons in writing or on the record, as provided, and states that it is the intent of the Legislature that this provision be interpreted consistently with the decision in Jaime G. v. H.L. (2018) ____ Cal.App.5th ____, which requires the court, in determining that the presumption has been overcome, to make specific findings on each of the factors; and
   4. Requiring the court, in any evidentiary hearing in which custody or visitation is sought and where an allegation of domestic violence is made, to determine if the presumption may apply before issuing a custody or visitation order, unless the court finds that a continuance is necessary to determine whether the presumption applies, in which case the court may issue a temporary custody order provided the order complies with Family Code Section (FAM) 3011 (including subdivision (e)) and 3020.
5. Requires the court to grant reasonable visitation to a parent when it is shown that visitation is in the child's best interests.
6. Requires that existing judicial training on domestic violence also include, but not be limited to, training on the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

The Senate amendments delete the addition of visitation to the presumption against custody to a perpetrator of domestic violence and make other clarifying changes to that provision, require a court to grant reasonable visitation to a parent if it is in the child's best interests, and expand judicial training on domestic violence, as provided.

EXISTING LAW:

1. Requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (FAM 3040). Unless otherwise stated, all further statutory references are to that code.)
2. Requires the court in making a best interests determination, to consider all of the following, among other relevant factors:
   1. The health, safety, and welfare of the child;
   2. Any history of abuse or domestic violence by the parent seeking custody of the child against a child, the other parent, or another person, as provided;
   3. The nature and amount of contact with both parents; and
   4. The habitual or continual use of drugs or abuse of alcohol.

Where there are allegations of child abuse or domestic violence, or drug or alcohol abuse, and the court gives custody to that parent, requires the court to state its reasons in writing or on the record. (FAM 3011.)

1. Provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. Provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the child's best interests. Where the policies set forth above are in conflict, requires that any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (FAM 3020.)
2. Requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (FAM 3100.)
3. Creates a rebuttable presumption against custody of a child to a parent who, the court finds, has perpetrated domestic violence against the other party, the child, or the child's sibling within the previous five years. Requires the court, in considering whether to overcome the presumption against custody, to consider, among other things, whether giving that parent custody is in the child's best interests; whether the perpetrator has completed a batterer's treatment program, substance abuse program or parenting classes; and whether there have been subsequent acts of domestic violence. (FAM 3044.)
4. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council. Requires that the training program include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence. Requires that the training programs include instruction in all aspects of domestic violence. (Government Code Section 68555; California Rules of Court, Rule 10.464.)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: All too often, children involved in contested custody and visitation matters in family court are subject to abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. This bill increases those protections and helps ensure that children in custody and visitation arrangements established in family court are safe from harm.

It goes without saying that children are harmed if they are physically abused, including if they are sexually abused. It is equally true that children are harmed when neglected or subjected to emotional harm, and children are subject to removal from their families and made dependents of the juvenile court for such neglect or abuse. (See Welfare and Institutions Code Section 300.)

Recent research confirms that even if children are not the direct targets of abusive behavior, but are exposed to domestic violence in their household, they can suffer severe and lasting harm. The Adverse Childhood Experiences (ACE) study, a collaboration between the Centers for Disease Control and Prevention (CDC) and Kaiser Permanente, has studied the effect of child abuse and related childhood adversarial experiences on health consequences through surveys and health exams of over 17,000 members of the Kaiser HMO (Health Maintenance Organization) beginning in 1995. CDC continues to update those surveys. That study found that adverse childhood experiences, including exposure to domestic violence, can cause immediate and long-term adverse impacts to children, including increased risk of alcoholism, heart disease, depression, illicit drug use, poor academic achievement, poor work performance, risk of domestic violence and suicide, and early death. (Felitti et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, American Journal of Preventative Medicine (May 1998) Vol. 14, Issue 4, pp. 245-258.) Simply put, it is harmful to children, both immediately and throughout their lives, to be exposed to domestic violence. This bill provides increased protections to better prevent children from being exposed to abuse or domestic violence.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0004527 FN:

 THIRD READING  

Bill No: AB 2044

Author:

Amended: 8/16/18 in Senate

Vote:

SENATE JUDICIARY COMMITTEE: 6-0, 6/12/18

AYES: Jackson, Anderson, Hertzberg, Monning, Stern, Wieckowski

NO VOTE RECORDED: Moorlach

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 51-0, 4/5/18 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill updates child custody and visitation statutes in an effort to further protect children from parents who have perpetrated domestic violence or child abuse and further ensure that the health, safety, and welfare of children are paramount in the determination of what custody or visitation orders are in the best interest of children.

Senate Floor Amendments of 8/16/18 ensure that this bill is interpreted consistently with the recent decision of Jaime G. v. H.L. (2018) ___Cal.App.5^th___.

ANALYSIS:

Existing law:

1. Requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (Fam. Code Sec. 3040.)
2. Requires the court in making a “best interests of the child” determination, to consider all of the following, among any other factors the court finds relevant:

• the health, safety, and welfare of the child; (Fam. Code Sec. 3011(a))
• the nature and amount of contact with both parents, as specified; (Fam. Code Sec. 3011(c))
• the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, as specified. (Fam. Code Sec. 3011(d))
• any history of abuse by one parent or any other person seeking custody against any of the following:
  • the other parent;
  • any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary;
  • a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. (Fam. Code Sec. 3011(b))

1. Provides that as a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, as specified. (Fam. Code Sec. 3011(b).)
2. Provides that where allegations about a parent pursuant to subdivision (b) (history of abuse) or subdivision (d) (drug use/alcohol abuse) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child, as specified. (Fam. Code Sec. 3011(e).)
3. Provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children. (Fam. Code Sec. 3020(a).)
4. Provides that the Legislature finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. (Fam. Code Sec. 3020(a).)
5. Provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the best interest of the child, as provided in Family Code Section 3011. (Fam. Code Sec. 3020(b).)
6. Provides that where the policies set forth in Family Code Sec. 3020(a) and (b) are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (Fam. Code Sec. 3020(c).)
7. Requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (Fam. Code Sec. 3100(a).)
8. Provides that if a protective order, as defined, has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation by that parent be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The court shall include in its deliberations a consideration of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation. (Fam. Code Sec. 3100(b).)
9. Provides that upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (Fam. Code Sec. 3044(a).)
10. Provides that in determining whether the presumption set forth above has been overcome, the court shall consider all of the following factors:

• whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child, as specified;
• whether the perpetrator has successfully completed a batterer’s treatment program, as provided;
• whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
• whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
• whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole;
• whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions; and
• whether the perpetrator of domestic violence has committed any further acts of domestic violence. (Fam. Code Sec. 3044(b).)

1. Defines “perpetrated domestic violence,” as specified, for purposes of the rebuttable presumption provision in Family Code Section 3044(a). (Fam. Code Sec. 3044(c), (d) & (e).)
2. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction “in all aspects of domestic violence.” (Gov. Code Sec. 68555; California Rules of Court, Rule 10.464.)

This bill:

1. Provides that as a prerequisite to considering allegations of abuse, the court may require independent corroboration, instead of “substantial” independent corroboration.
2. Provides, additionally, that in considering what the court must consider in making a determination of “best interests of the child” the consideration must be consistent with the legislative findings and declarations specified in Section 3020 of the Family Code. In other words, this bill provides that when the court considers the factors regarding best interest of the child, the court would have to also be consistent with the findings and declarations of the Legislature as described in Family Code Section 3020.
3. Expands on this legislative intent and further provides that the Legislature finds and declares that children have the right to be safe and free from abuse, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
4. Provides, instead, that the Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except when the contact would not be in the best interests of the child as provided in paragraphs (b) and (c) of Family Code Section 3020.
5. Requires the court to grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Family Code Section 3011, and consistent with Family Code Section 3020.
6. Extends this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship, including a parent, current spouse, cohabitant, or person with whom the person seeking custody has a dating or engagement relationship.
7. Requires the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests of the child pursuant to Family Code sections 3011 and 3020, and specifies additional factors that, on balance, are required to support the grant of custody. The additional factors are:

• the perpetrator has successfully completed a batterer’s treatment program, as provided;
• the perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate;
• the perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate;
• the perpetrator is on probation or parole, and he or she has or has not complied with the terms and conditions of probation or parole;
• the perpetrator is restrained by a protective order or restraining order, and he or she has or has not complied with its terms and conditions; and
• the perpetrator of domestic violence has committed any further acts of domestic violence.

1. Requires the court to state its reasons for finding that the presumption has been overcome in writing or on the record.
2. Provides that in an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether Family Code Section 3044 applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Section 3011, including, but not limited to, subdivision (e), and Section 3020.
3. Requires that training programs shall include instruction “in all aspects of domestic violence” and further specifies that it shall include, but not be limited to, the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.
4. Specifies that it is the intent of the Legislature that this bill be interpreted consistently with the decision in Jaime G. v. H.L. (2018) ___Cal.App.5^th___.
5. Makes conforming and nonsubstantive changes.

Background

Research confirms that children exposed to domestic violence in their household can suffer severe and lasting harm, even when they are not the direct targets of abusive behavior.^[1]

California custody and visitation statutes contain provisions designed to protect children from parents who have engaged in domestic or child abuse. California law requires that courts make custody and visitation decisions based on the best interest of the child. (Fam. Code Secs. 3040 & 3100.) The Legislature has made it clear in findings and declarations that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child and that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation. (Fam. Code Sec. 3020(a).) In further protection of children, the law also provides that upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. (Fam. Code Sec. 3044(a).) The presumption against awarding custody to a perpetrator of domestic violence was first established in 1999 (AB 840, Kuehl, Chapter 455) and subsequently updated in 2003 (SB 265, Kuehl, Chapter 243). In an effort to further protect children from exposure to abuse, this bill would also extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship, including a parent, current spouse, cohabitant, or person with whom the person seeking custody has a dating or engagement relationship. This bill also clarifies the best interest of the child determination for child custody and legislative findings and declarations on child custody, placing greater emphasis on ensuring the health, safety, and welfare of children.

Comments

The author writes, “All too often, children involved in contested custody and visitation matters in family court are victims of abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. Given recent research by the Centers for Disease Control on adverse childhood experiences, which confirms that even without being the direct targets of abusive behavior, if children are exposed to domestic violence in their households, they can suffer severe and lasting harm, the need to protect children from child abuse and exposure to domestic violence is all the greater. AB 2044 seeks to increase protections and help ensure that children are safe from harm by (1) better tying together two existing sections governing child custody and visitation determinations to focus on child safety; (2) clarifying that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child and that children have the right to be safe and free from abuse; (3) strengthening the existing presumption against custody to a perpetrator of domestic violence; and (4) providing that the existing judicial training on domestic violence also include training on the detriment to children of residing in a home where domestic violence occurs. These changes will better protect children and keep them safe from abuse.”

Related/Prior Legislation

SB 265 (Kuehl, Chapter 243, Statutes of 2003) See Background.

AB 840 (Kuehl, Chapter 455, Statutes of 1999) See Background.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/20/18)

California Protective Parents Association

Center for Judicial Excellence

Child Abuse Prevention Center

California Family Resource Association

California Partnership to End Domestic Violence

Family Violence Appellate Project

One individual

OPPOSITION: (Verified 8/20/18)

Children’s Lives Matter

Parents Against CPS Corruption

Raise Your Rights

Four individuals

ASSEMBLY FLOOR: 51-0, 4/5/18

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Nazarian, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Rendon

NO VOTE RECORDED: Acosta, Travis Allen, Bigelow, Chen, Choi, Cunningham, Dahle, Flora, Fong, Gallagher, Cristina Garcia, Gonzalez Fletcher, Harper, Kiley, Mathis, Mayes, Melendez, Mullin, Muratsuchi, Obernolte, O'Donnell, Patterson, Steinorth, Voepel, Waldron, Wood

Prepared by:

8/20/18 16:25:21

**** END ****

1. National Association of Social Workers, The Adverse Childhood Experiences (ACE) Study: Implications for Mothers’ & Children’s Exposure to Domestic Violence, Spring Practice Perspectives (May 2013) <https://www.socialworkers.org/assets/secured/documents/practice/children/acestudy.pdf> [as of 6/4/18] ↑

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2044

Author:(Mark Stone)

As Amended Ver:May 31, 2018

Majority vote

Original Committee Reference: JUD.

SUMMARY: Clarifies the best interests determination for child custody and legislative findings and declarations on child custody, and strengthens the presumption against custody to a perpetrator of domestic violence. Specifically, this bill:

1. Requires the court, when making a best interests of the child determination in a custody or visitation case, to make the decision consistent with the revised legislative findings and declarations that: a) the health, safety, and welfare of the child is the court's primary concern when determining the best interests of the child, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child; and b) a child should have frequent and continuing contact with both parents; but when a) and b), above, are in conflict, requires any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
2. Allows a court to require independent corroboration of an allegation of abuse, as opposed to substantial independent corroboration.
3. Finds and declares that children have the right to be free from abuse and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
4. Adds the following to the presumption against custody to a party that a court finds has perpetrated domestic violence within the previous five years:
   1. Extension of the presumption to a party who has committed domestic violence against a parent, current spouse or cohabitant, or person in dating or engagement relationship;
   2. Permitting the presumption against custody to be overcome if both:
      1. It is in the best interests of the child to allow such contact; and
      2. On balance, the other existing factors support such contact;
   3. Requiring the court, if it finds that the presumption has been overcome, to state its reasons in writing or on the record, as provided; and
   4. Requiring the court, in any evidentiary hearing in which custody or visitation is sought and where an allegation of domestic violence is made, to determine if the presumption may apply before issuing a custody or visitation order, unless the court finds that a continuance is necessary to determine whether the presumption applies, in which case the court may issue a temporary custody order provided the order complies with Family Code Section (FAM) 3011 (including subdivision (e)) and 3020.
5. Requires the court to grant reasonable visitation to a parent when it is shown that visitation is in the child's best interests.
6. Requires that existing judicial training on domestic violence also include, but not be limited to, training on the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

The Senate amendments delete the addition of visitation to the presumption against custody to a perpetrator of domestic violence and make other clarifying changes to that provision, require a court to grant reasonable visitation to a parent if it is in the child's best interests, and expand judicial training on domestic violence, as provided.

EXISTING LAW:

1. Requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (FAM 3040). Unless otherwise stated, all further statutory references are to that code.)
2. Requires the court in making a best interests determination, to consider all of the following, among other relevant factors:
   1. The health, safety, and welfare of the child;
   2. Any history of abuse or domestic violence by the parent seeking custody of the child against a child, the other parent, or another person, as provided;
   3. The nature and amount of contact with both parents; and
   4. The habitual or continual use of drugs or abuse of alcohol.

Where there are allegations of child abuse or domestic violence, or drug or alcohol abuse, and the court gives custody to that parent, requires the court to state its reasons in writing or on the record. (FAM 3011.)

1. Provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. Provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the child's best interests. Where the policies set forth above are in conflict, requires that any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (FAM 3020.)
2. Requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (FAM 3100.)
3. Creates a rebuttable presumption against custody of a child to a parent who, the court finds, has perpetrated domestic violence against the other party, the child, or the child's sibling within the previous five years. Requires the court, in considering whether to overcome the presumption against custody, to consider, among other things, whether giving that parent custody is in the child's best interests; whether the perpetrator has completed a batterer's treatment program, substance abuse program or parenting classes; and whether there have been subsequent acts of domestic violence. (FAM 3044.)
4. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council. Requires that the training program include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence. Requires that the training programs include instruction in all aspects of domestic violence. (Government Code Section 68555; California Rules of Court, Rule 10.464.)

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: All too often, children involved in contested custody and visitation matters in family court are subject to abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. This bill increases those protections and helps ensure that children in custody and visitation arrangements established in family court are safe from harm.

It goes without saying that children are harmed if they are physically abused, including if they are sexually abused. It is equally true that children are harmed when neglected or subjected to emotional harm, and children are subject to removal from their families and made dependents of the juvenile court for such neglect or abuse. (See Welfare and Institutions Code Section 300.)

Recent research confirms that even if children are not the direct targets of abusive behavior, but are exposed to domestic violence in their household, they can suffer severe and lasting harm. The Adverse Childhood Experiences (ACE) study, a collaboration between the Centers for Disease Control (CDC) and Kaiser Permanente, has studied the effect of child abuse and related childhood adversarial experiences on health consequences through surveys and health exams of over 17,000 members of the Kaiser HMO (Health Maintenance Organization) beginning in 1995. CDC continues to update those surveys. That study found that adverse childhood experiences, including exposure to domestic violence, can cause immediate and long-term adverse impacts to children, including increased risk of alcoholism, heart disease, depression, illicit drug use, poor academic achievement, poor work performance, risk of domestic violence and suicide, and early death. (Felitti et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, American Journal of Preventative Medicine (May 1998) Vol. 14, Issue 4, pp. 245-258.) Simply put, it is harmful to children, both immediately and throughout their lives, to be exposed to domestic violence. This bill provides increased protections to better prevent children from being exposed to abuse or domestic violence.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0003612

 THIRD READING  

Bill No: AB 2044

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 6-0, 6/12/18

AYES: Jackson, Anderson, Hertzberg, Monning, Stern, Wieckowski

NO VOTE RECORDED: Moorlach

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 51-0, 4/5/18 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill updates child custody and visitation statutes in an effort to further protect children from parents who have perpetrated domestic violence or child abuse and further ensure that the health, safety, and welfare of children are paramount in the determination of what custody or visitation orders are in the best interest of children.

ANALYSIS:

Existing law:

1. Requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (Fam. Code Sec. 3040.)
2. Requires the court in making a “best interests of the child” determination, to consider all of the following, among any other factors the court finds relevant:

• the health, safety, and welfare of the child; (Fam. Code Sec. 3011(a))
• the nature and amount of contact with both parents, as specified; (Fam. Code Sec. 3011(c))
• the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, as specified. (Fam. Code Sec. 3011(d))
• any history of abuse by one parent or any other person seeking custody against any of the following:
  • the other parent;
  • any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary;
  • a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. (Fam. Code Sec. 3011(b))

1. Provides that as a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, as specified. (Fam. Code Sec. 3011(b).)
2. Provides that where allegations about a parent pursuant to subdivision (b) (history of abuse) or subdivision (d) (drug use/alcohol abuse) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child, as specified. (Fam. Code Sec. 3011(e).)
3. Provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children. (Fam. Code Sec. 3020(a).)
4. Provides that the Legislature finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. (Fam. Code Sec. 3020(a).)
5. Provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the best interest of the child, as provided in Family Code Section 3011. (Fam. Code Sec. 3020(b).)
6. Provides that where the policies set forth in Family Code Sec. 3020(a) and (b) are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (Fam. Code Sec. 3020(c).)
7. Requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (Fam. Code Sec. 3100(a).)
8. Provides that if a protective order, as defined, has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation by that parent be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The court shall include in its deliberations a consideration of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation. (Fam. Code Sec. 3100(b).)
9. Provides that upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (Fam. Code Sec. 3044(a).)
10. Provides that in determining whether the presumption set forth above has been overcome, the court shall consider all of the following factors:

• whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child, as specified;
• whether the perpetrator has successfully completed a batterer’s treatment program, as provided;
• whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
• whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
• whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole;
• whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions; and
• whether the perpetrator of domestic violence has committed any further acts of domestic violence. (Fam. Code Sec. 3044(b).)

1. Defines “perpetrated domestic violence,” as specified, for purposes of the rebuttable presumption provision in Family Code Section 3044(a). (Fam. Code Sec. 3044(c), (d) & (e).)
2. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction “in all aspects of domestic violence.” (Gov. Code Sec. 68555; California Rules of Court, Rule 10.464.)

This bill:

1. Provides that as a prerequisite to considering allegations of abuse, the court may require independent corroboration, instead of “substantial” independent corroboration.
2. Provides, additionally, that in considering what the court must consider in making a determination of “best interests of the child” the consideration must be consistent with the legislative findings and declarations specified in Section 3020 of the Family Code. In other words, this bill provides that when the court considers the factors regarding best interest of the child, the court would have to also be consistent with the findings and declarations of the Legislature as described in Family Code Section 3020.
3. Expands on this legislative intent and further provides that the Legislature finds and declares that children have the right to be safe and free from abuse, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
4. Provides, instead, that the Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except when the contact would not be in the best interests of the child as provided in paragraphs (b) and (c) of Family Code Section 3020.
5. Requires the court to grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Family Code Section 3011, and consistent with Family Code Section 3020.
6. Extends this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship, including a parent, current spouse, cohabitant, or person with whom the person seeking custody has a dating or engagement relationship.
7. Requires the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests of the child pursuant to Family Code sections 3011 and 3020, and specifies additional factors that, on balance, are required to support the grant of custody. The additional factors are:

• the perpetrator has successfully completed a batterer’s treatment program, as provided;
• the perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate;
• the perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate;
• the perpetrator is on probation or parole, and he or she has or has not complied with the terms and conditions of probation or parole;
• the perpetrator is restrained by a protective order or restraining order, and he or she has or has not complied with its terms and conditions; and
• the perpetrator of domestic violence has committed any further acts of domestic violence.

1. Requires the court to state its reasons for finding that the presumption has been overcome in writing or on the record.
2. Provides that in an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether Family Code Section 3044 applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Section 3011, including, but not limited to, subdivision (e), and Section 3020.
3. Requires that training programs shall include instruction “in all aspects of domestic violence” and further specifies that it shall include, but not be limited to, the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.
4. Makes conforming and nonsubstantive changes.

Background

Research confirms that children exposed to domestic violence in their household can suffer severe and lasting harm, even when they are not the direct targets of abusive behavior.^[1]

California custody and visitation statutes contain provisions designed to protect children from parents who have engaged in domestic or child abuse. California law requires that courts make custody and visitation decisions based on the best interest of the child. (Fam. Code Secs. 3040 & 3100.) The Legislature has made it clear in findings and declarations that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child and that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation. (Fam. Code Sec. 3020(a).) In further protection of children, the law also provides that upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. (Fam. Code Sec. 3044(a).) The presumption against awarding custody to a perpetrator of domestic violence was first established in 1999 (AB 840, Kuehl, Chapter 455) and subsequently updated in 2003 (SB 265, Kuehl, Chapter 243). In an effort to further protect children from exposure to abuse, this bill would also extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship, including a parent, current spouse, cohabitant, or person with whom the person seeking custody has a dating or engagement relationship. This bill also clarifies the best interest of the child determination for child custody and legislative findings and declarations on child custody, placing greater emphasis on ensuring the health, safety, and welfare of children.

Comments

The author writes, “All too often, children involved in contested custody and visitation matters in family court are victims of abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. Given recent research by the Centers for Disease Control on adverse childhood experiences, which confirms that even without being the direct targets of abusive behavior, if children are exposed to domestic violence in their households, they can suffer severe and lasting harm, the need to protect children from child abuse and exposure to domestic violence is all the greater. AB 2044 seeks to increase protections and help ensure that children are safe from harm by (1) better tying together two existing sections governing child custody and visitation determinations to focus on child safety; (2) clarifying that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child and that children have the right to be safe and free from abuse; (3) strengthening the existing presumption against custody to a perpetrator of domestic violence; and (4) providing that the existing judicial training on domestic violence also include training on the detriment to children of residing in a home where domestic violence occurs. These changes will better protect children and keep them safe from abuse.”

Related/Prior Legislation

SB 265 (Kuehl, Chapter 243, Statutes of 2003) See Background.

AB 840 (Kuehl, Chapter 455, Statutes of 1999) See Background.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/27/18)

California Protective Parents Association

Center for Judicial Excellence

Child Abuse Prevention Center

California Family Resource Association

California Partnership to End Domestic Violence

Family Violence Appellate Project

One individual

OPPOSITION: (Verified 6/27/18)

Children’s Lives Matter

Parents Against CPS Corruption

Raise Your Rights

Four individuals

ASSEMBLY FLOOR: 51-0, 4/5/18

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Nazarian, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Rendon

NO VOTE RECORDED: Acosta, Travis Allen, Bigelow, Chen, Choi, Cunningham, Dahle, Flora, Fong, Gallagher, Cristina Garcia, Gonzalez Fletcher, Harper, Kiley, Mathis, Mayes, Melendez, Mullin, Muratsuchi, Obernolte, O'Donnell, Patterson, Steinorth, Voepel, Waldron, Wood

Prepared by: Margie Estrada / JUD. / (916) 651-4113

6/27/18 15:01:34

**** END ****

1. National Association of Social Workers, The Adverse Childhood Experiences (ACE) Study: Implications for Mothers’ & Children’s Exposure to Domestic Violence, Spring Practice Perspectives (May 2013) <https://www.socialworkers.org/assets/secured/documents/practice/children/acestudy.pdf> [as of 6/4/18] ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2044 (Author:Mark Stone)

Version: May 31, 2018

Hearing Date: June 12, 2018

Fiscal: Yes

Urgency: No

Consultant: MEC

SUBJECT

Domestic violence: family court

DESCRIPTION

This bill would update child custody and visitation statutes in an effort to further protect children from parents who have perpetrated domestic violence or child abuse and further ensure that the health, safety, and welfare of children are paramount in the determination of what custody or visitation orders are in the best interest of children.

BACKGROUND

Research confirms that children exposed to domestic violence in their household can suffer severe and lasting harm, even when they are not the direct targets of abusive behavior.^[1] As explained in a study that is a collaboration between the Centers for Disease Control and Kaiser Permanente:

[R]esearch demonstrates that exposure to domestic violence can increase risk for physical, mental health, and substance abuse conditions. Furthermore, research on children who witness domestic violence found that they face an increased risk for mental health issues related to juvenile delinquency, antisocial behavior, and escalated rates of depression, anxiety, and PTSD[.] The impact of chronic domestic violence exposure in childhood was found to have long term effects throughout the life span.

California custody and visitation statutes contain provisions designed to protect children from parents who have engaged in domestic or child abuse. California law requires that courts make custody and visitation decisions based on the best interest of the child. (Fam. Code Secs. 3040 & 3100.) The Legislature has made it clear in findings and declarations that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child and that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation. (Fam. Code Sec. 3020(a).) In further protection of children, the law also provides that upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. (Fam. Code Sec. 3044(a).) The presumption against awarding custody to a perpetrator of domestic violence was first established in 1999 (AB 840 (Kuehl, Ch. 455, Stats. 1999)) and subsequently updated in 2003 (SB 265 (Kuehl, Ch. 243, Stats. 2003)). In an effort to further protect children from exposure to abuse, this bill would also extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship, including a parent, current spouse, cohabitant, or person with whom the person seeking custody has a dating or engagement relationship. This bill would also clarify the best interest of the child determination for child custody and legislative findings and declarations on child custody, placing greater emphasis on ensuring the health, safety, and welfare of children.

CHANGES TO EXISTING LAW

Existing law requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (Fam. Code Sec. 3040.)

Existing law requires the court in making a “best interests of the child” determination, to consider all of the following, among any other factors the court finds relevant:

• the health, safety, and welfare of the child; (Fam. Code Sec. 3011(a))
• the nature and amount of contact with both parents, as specified; (Fam. Code Sec. 3011(c))
• the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, as specified. (Fam. Code Sec. 3011(d))
• any history of abuse by one parent or any other person seeking custody against any of the following:
  • the other parent;
  • any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary;
  • a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. (Fam. Code Sec. 3011(b))

Existing law provides that as a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, as specified. (Fam. Code Sec. 3011(b).)

This bill would instead provide that as a prerequisite to considering allegations of abuse, the court may require independent corroboration, instead of “substantial” independent corroboration.

Existing law provides that where allegations about a parent pursuant to subdivision (b) (history of abuse) or subdivision (d) (drug use/alcohol abuse) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child, as specified. (Fam. Code Sec. 3011(e).)

This bill would additionally provide that in considering what the court must consider in making a determination of “best interests of the child” the consideration must be consistent with the legislative findings and declarations specified in Section 3020 of the Family Code. In other words, this bill would provide that when the court considers the factors regarding best interest of the child, the court would have to also be consistent with the findings and declarations of the Legislature as described in Family Code Section 3020.

Existing law provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children. (Fam. Code Sec. 3020(a).)

Existing law provides that the Legislature finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. (Fam. Code Sec. 3020(a).)

This bill would expand on this legislative intent and further provide that the Legislature finds and declares that children have the right to be safe and free from abuse, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

Existing law provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the best interest of the child, as provided in Family Code Section 3011. (Fam. Code Sec. 3020(b).)

This bill would instead provide that the Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except when the contact would not be in the best interests of the child as provided in paragraphs (b) and (c) of Family Code Section 3020.

Existing law provides that where the policies set forth in Family Code Sec. 3020(a) and (b) are in conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (Fam. Code Sec. 3020(c).)

Existing law requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (Fam. Code Sec. 3100(a).)

This bill would require the court to grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Family Code Section 3011, and consistent with Family Code Section 3020.

Existing law provides that if a protective order, as defined, has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation by that parent be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The court shall include in its deliberations a consideration of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation. (Fam. Code Sec. 3100(b).)

Existing law provides that upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (Fam. Code Sec. 3044(a).)

This bill would extend this presumption to a person who has committed domestic violence against another person with whom that party has a specified relationship, including a parent, current spouse, cohabitant, or person with whom the person seeking custody has a dating or engagement relationship.

Existing law provides that in determining whether the presumption set forth above has been overcome, the court shall consider all of the following factors:

• whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child, as specified;
• whether the perpetrator has successfully completed a batterer’s treatment program, as provided;
• whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
• whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
• whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole;
• whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions; and
• whether the perpetrator of domestic violence has committed any further acts of domestic violence. (Fam. Code Sec. 3044(b).)

Existing law defines “perpetrated domestic violence,” as specified, for purposes of the rebuttable presumption provision in Family Code Section 3044(a). (Fam. Code Sec. 3044(c), (d) & (e).)

This bill would require the court, in determining whether the presumption is overcome, to find that the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interests of the child pursuant to Family Code sections 3011 and 3020, and would specify additional factors that, on balance, are required to support the grant of custody. The additional factors are:

• the perpetrator has successfully completed a batterer’s treatment program, as provided;
• the perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines that counseling is appropriate;
• the perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate;
• the perpetrator is on probation or parole, and he or she has or has not complied with the terms and conditions of probation or parole;
• the perpetrator is restrained by a protective order or restraining order, and he or she has or has not complied with its terms and conditions; and
• the perpetrator of domestic violence has committed any further acts of domestic violence.

This bill would require the court to state its reasons for finding that the presumption has been overcome in writing or on the record.

This bill would provide that in an evidentiary hearing or trial in which custody orders are sought and where there has been an allegation of domestic violence, the court shall make a determination as to whether Family Code Section 3044 applies prior to issuing a custody order, unless the court finds that a continuance is necessary to determine whether this section applies, in which case the court may issue a temporary custody order for a reasonable period of time, provided the order complies with Section 3011, including, but not limited to, subdivision (e), and Section 3020.

Existing law requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including judges, referees, and mediators, among others, and requires that the training programs include instruction “in all aspects of domestic violence.” (Gov. Code Sec. 68555; California Rules of Court, Rule 10.464.)

This bill would require that training programs shall include instruction “in all aspects of domestic violence” and further specify that it shall be including, but not limited to, the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

This bill makes conforming and nonsubstantive changes.

COMMENT

1. Stated need for the bill

According to the author:

All too often, children involved in contested custody and visitation matters in family court are victims of abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. Given recent research by the Centers for Disease Control on adverse childhood experiences, which confirms that even without being the direct targets of abusive behavior, if children are exposed to domestic violence in their households, they can suffer severe and lasting harm, the need to protect children from child abuse and exposure to domestic violence is all the greater. AB 2044 seeks to increase protections and help ensure that children are safe from harm by (1) better tying together two existing sections governing child custody and visitation determinations to focus on child safety; (2) clarifying that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child and that children have the right to be safe and free from abuse; (3) strengthening the existing presumption against custody to a perpetrator of domestic violence; and (4) providing that the existing judicial training on domestic violence also include training on the detriment to children of residing in a home where domestic violence occurs. These changes will better protect children and keep them safe from abuse.

In support of AB 2044, the Family Violence Appellate Project explains:

AB 2044 strengthens [Family Code sections 3011, 3020, and 3044], providing further protections for children from being in custody or visitation settings with abusive parents.

[The bill] specifies that when judges find that the presumption in section 3044 has been rebutted, they must give a brief statement in writing or on the record explaining their reasoning. This provision clarifies existing law by making it clear that Family Code section 3011(e), which already requires such a statement if an alleged abuser of a partner, child, or parent is awarded any type of custody, applies to decisions under section 3044[.] Given that approximately 90 percent of litigants in California family courts have no attorneys, it is crucial that courts give such explanations so the parents, future trial court judges dealing with the same parties, and appellate courts understand the basis for the original custody award.

The bill also specifies that when new judges receive training on domestic violence, as provided for under current law, it shall include training on the detriment to children from residing in a home where domestic violence occurs. There is a great body of social science research demonstrating this detriment. In a concurring opinion in De la Luz Perez v. Torres-Hernandez (2016) 1 Cal.App.5^th 389, another FVAP case, Justice Jon Streeter described “the abundance of social science studies showing a direct correlation between abuse against a parent and abuse against the children of that parent.” (p. 402) He cited studies by respected researchers: Edleson, The Overlap Between Child Maltreatment and Woman Abuse (1997, rev. 1999); Meisner & Korn, Protecting Children of Domestic Violence Victims with Criminal No-Contact Orders (2011); and Hart & Klein, Practical Implications of Current Intimate Partner Violence Research for Victim Advocates and Service Providers (2013). Justice Streeter noted that most of the studies in the field of family violence show that in 30-60 percent of families where either child abuse or spousal abuse exists, both forms of the abuse exist (emphasis in original).

2. Exposure to domestic violence harms children

In support, Hastings College of the Law Professor of Law D. Kelly Weisberg writes:

The pending bill makes clear that children in custody cases have the right to be free from abuse and that residing in a house where child abuse or domestic violence is perpetrated is detrimental to the health, safety, and welfare of the child. [ . . . ]

Exposing children to violence harms them and creates a significant threat to their health and well-being. Additionally, children exposed to violence are often physically abused themselves. This bill will better protect children by helping prevent them from being placed with parents who will harm them.

In his concurring opinion in De la Lux Perez v. Torres-Hernandez 1 Cal. App. 5^th 389, 402 (2016), Justice Streeter emphasized “the abundance of social science studies showing a direct correlation between abuse against a parent and abuse against the children of that parent.” He pointed to a study^[2] which cited “over 30 studies showing 41% median co-occurrence of child maltreatment and adult domestic violence.” According to Justice Streeter:

Within this body of social science literature, most of the studies show that in 30–60 percent of families where either child abuse or spousal abuse exists, both forms of the abuse exist (see Hart & Klein, Practical Implications, supra, at pp. 64–65), a phenomenon no doubt reflective of the sad reality that some batterers abuse children as a way to inflict pain on the abused spouse. There is also a documented link in the severity of spousal and related child abuse. A number of the studies show that the more severe the spousal abuse, the more severely the battered spouse's child is likely to be abused. (E.g., Edleson, The Overlap Between Child Maltreatment and Woman Abuse, supra, at p. 4.) The overlap between children witnessing domestic violence and being abused themselves has been widely documented as well. (Ibid.)

3. Updates child custody and visitation statutes in an effort to protect children

This bill would update child custody and visitation statutes in an effort to further protect children from parents who have perpetrated domestic violence or child abuse. Specifically, as explained by the California Partnership to End Domestic Violence in support of the bill:

This bill protects children in contested custody and visitation cases, by:

1) Better tying together two existing sections governing child custody and visitation determinations to focus on child safety.

2) Clarifying that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child and that children have the right to be safe and free from abuse.

3) Providing that the existing judicial training on domestic violence also include training on the detriment to children of residing in a home with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding and without other documented evidence of abuse.

AB 2044 will provide further legislative protections for children from being in custody or visitation settings with abusive parents.

The bill clarifies the best interest determination for child custody and legislative findings and declarations on child custody, and strengthens the presumption against custody to a perpetrator of domestic violence. Specifically, this bill would require the court, when making a best interest of the child determination in a custody or visitation proceeding, to make the decision consistent with specified legislative findings and declarations. Those findings and declarations would be revised in this bill and provide that (1) the health, safety, and welfare of the child is the court’s primary concern when determining the best interests of the child, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child; and (2) a child should have frequent and continuing contact with both parents. However, when provisions (1) and (2) are in conflict, this bill would require that any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.

Under current law, Family Code Section 3100(a) provides that “the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.” This provision would instead be revised to provide that “the court shall grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in section 3011, and consistent with Section 3020.”

Additionally, the bill would provide that judicial training programs regarding domestic violence must include training regarding the detriment to children of residing with a person who perpetrates domestic violence and that domestic violence can occur without a party seeking or obtaining a restraining order, without a substantiated child protective services finding, and without other documented evidence of abuse.

In further support of the bill, the California Protective Parents Association writes:

We are in support of AB 2044 as amended to make child custody determinations more consistent with child safety; to ensure children have a right to be safe and free form abuse including domestic violence in the home and against other partners; to have perpetrators demonstrate that receiving custody is in the best interests of the child; and to provide judicial training that addresses violence or abuse when there are no restraining orders or child welfare services substantiation of abuse.

[ . . . ]

There is an epidemic of domestic violence and child abuse in our state. Many victims are working hard to free themselves from their abusers, but if they have children, it is problematic due to family courts’ placing their children in harm’s way.

AB 2044 will make a difference, not only by keeping children from being killed, but also preventing children from being ordered to live in abusive homes.

Support: California Protective Parents Association; Center for Judicial Excellence; The Child Abuse Prevention Center; California Family Resource Association; California Partnership to End Domestic Violence; Family Violence Appellate Project; U.C. Hastings College of the Law Professor D. Kelly Weisberg

Opposition: Children’s Lives Matter; Parents Against CPS Corruption; Raise Your Rights; four individuals

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation:

SB 265 (Kuehl, Ch. 243, Stats. 2003) See Background

AB 840 (Kuehl, Ch. 455, Stats. 1999) See Background

Prior Vote:

Assembly Floor (Ayes 51, Noes 0)

Assembly Judiciary Committee (Ayes 8, Noes 1)

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

1. National Association of Social Workers, The Adverse Childhood Experiences (ACE) Study: Implications for Mothers’ & Children’s Exposure to Domestic Violence, Spring Practice Perspectives (May 2013) <https://www.socialworkers.org/assets/secured/documents/practice/children/acestudy.pdf> [as of 6/4/18] ↑

2. Hart & Klein, Practical Implications of Current Intimate Partner Violence Research for Victim Advocates and Service Providers (2013) National Criminal Justice Reference Service, p. 64 <https://www.ncjrs.gov/pdffiles1/nij/grants/244348.pdf> [as of June 9, 2016]. Justice Streeter also referenced the following: Edleson, The Overlap Between Child Maltreatment and Woman Abuse (1997) (rev. Apr. 1999) National Electronic Network on Violence Against Women <http://www.bvsde.paho.org/bvsacd/cd67/AR_overlap.pdf> [as of June 9, 2016], pp. 2–3; Meisner & Korn, Protecting Children of Domestic Violence Victims with Criminal No-Contact Orders (Apr. 2011) Aequitas: The Prosecutor's Resource on Violence Against Women, STRATEGIES Newsletter <http://www.aequitasresource.org/Protecting-Children-of-Domestic-Violence-Victims-with-Criminal-No-Contact-Orders.pdf> [as of June 9, 2016], p. 1. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2044

Author:(Mark Stone)

As Amended Ver:March 22, 2018

Majority vote

SUMMARY: Clarifies the best interests determination for child custody and legislative findings and declarations on child custody, and strengthens the presumption against custody to a perpetrator of domestic violence. Specifically, this bill:

1. Requires the court, when making a best interests of the child determination in a custody or visitation case, to make the decision consistent with the revised legislative findings and declarations that: a) the health, safety, and welfare of the child is the court's primary concern when determining the best interests of the child, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child; and b) a child should have frequent and continuing contact with both parents; but when a) and b) above, are in conflict, requires any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
2. Finds and declares that children have the right to be free from abuse and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
3. Adds the following to the presumption against custody to a party that a court finds has perpetrated domestic violence within the previous five years:
   1. A presumption against unsupervised visitation;
   2. Extension of the presumption to a party who has committed domestic violence against any person that the party has a close relationship with, as defined by the Domestic Violence Protection Act;
   3. Clarification that the five-year presumption runs from the court's finding of domestic violence;
   4. Permitting the presumption against custody or unsupervised visitation to be overcome if both:
      1. It is in the best interests of the child to allow such contact; and
      2. On balance, the other existing factors support such contact;
   5. Requiring the court, if it finds that the presumption has been overcome, to state its reasons in writing or on the record; and
   6. Requiring the court, in any evidentiary hearing in which custody or visitation is sought and where an allegation of domestic violence is made, to determine if the presumption may apply before issuing a custody or visitation order.
4. Requires that existing judicial training on domestic violence also include training on the detriment to children of residing in a home where domestic violence occurs.

EXISTING LAW:

1. Requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (Family Code Section 3040. Unless otherwise stated, all further statutory references are to that code.)
2. Requires the court in making a best interests determination, to consider all of the following, among other relevant factors:
   1. The health, safety, and welfare of the child;
   2. Any history of abuse or domestic violence by the parent seeking custody of the child against a child, the other parent, or another person, as provided;
   3. The nature and amount of contact with both parents; and
   4. The habitual or continual use of drugs or abuse of alcohol.

Where there are allegations of child abuse or domestic violence, or drug or alcohol abuse, and the court gives custody to that parent, requires the court to state its reasons in writing or on the record. (Section 3011.)

1. Provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. Provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the child's best interests. Where the policies set forth above are in conflict, requires that any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (Section 3020.)
2. Requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (Section 3100.)
3. Creates a rebuttable presumption against custody of a child to a parent who, the court finds, has perpetrated domestic violence against the other party, the child, or the child's sibling within the previous five years. Requires the court, in considering whether to overcome the presumption against custody, to consider, among other things, whether giving that parent custody is in the child's best interests; whether the perpetrator has completed a batterer's treatment program, substance abuse program or parenting classes; and whether there have been subsequent acts of domestic violence. (Section 3044.)
4. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council. Requires that the training program include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence. Requires that the training programs include instruction in all aspects of domestic violence. (Government Code Section 68555; California Rules of Court, Rule 10.464.)

FISCAL EFFECT: None

COMMENTS: All too often, children involved in contested custody and visitation matters in family court are subject to abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. This bill increases those protections and helps ensure that children in custody and visitation arrangements established in family court are safe from harm.

It goes without saying that children are harmed if they are physically abused, including if they are sexually abused. It is equally true that children are harmed when neglected or subjected to emotional harm, and children are subject to removal from their families and made dependents of the juvenile court for such neglect or abuse. (See Welfare and Institutions Code Section 300.)

Recent research confirms that even if children are not the direct targets of abusive behavior, but are exposed to domestic violence in their household, they can suffer severe and lasting harm. The Adverse Childhood Experiences (ACE) study, a collaboration between the Centers for Disease Control (CDC) and Kaiser Permanente, has studied the effect of child abuse and related childhood adversarial experiences on health consequences through surveys and health exams of over 17,000 members of the Kaiser HMO (Health Maintenance Organization) beginning in 1995. CDC continues to update those surveys. That study found that adverse childhood experiences, including exposure to domestic violence, can cause immediate and long-term adverse impacts to children, including increased risk of alcoholism, heart disease, depression, illicit drug use, poor academic achievement, poor work performance, risk of domestic violence and suicide, and early death. (Felitti et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, American Journal of Preventative Medicine (May 1998) Vol. 14, Issue 4, pp. 245-258.) Simply put, it is harmful to children, both immediately and throughout their lives, to be exposed to domestic violence. This bill provides increased protections to better prevent children from being exposed to abuse or domestic violence.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002638

Date of Hearing: April 3, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2044

Author:(Stone) – As Amended Ver:March 22, 2018

SUBJECT: CHILD CUstody: DOMESTIC VIOLENCE and child SAFETY

KEY ISSUE: In order to protect children FROM ABUSE, SHOULD THE LAW BE CLARIFIED TO BETTER DEFINE A COURT’S RESPONSIBILITY WHEN MAKING A BEST INTERESTS OF THE CHILD CUSTODY DETERMINATION AND SHOULD THE PRESUMPTION AGAINST giving CUSTODY TO A BATTERER BE STRENGTHENED?

SYNOPSIS

All too often, children involved in contested custody and visitation matters in family court are subject to abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. Given recent research by the Centers for Disease Control on adverse childhood experiences, which confirms that even without being the direct targets of abusive behavior, if children are exposed to domestic violence in their households, they can suffer severe and lasting harm, the need to protect children from child abuse and exposure to domestic violence is all the greater.

This bill seeks to increase protections and help ensure that children in custody and visitation arrangements established in family court are safe from harm in several key ways. First, the bill better ties together two existing sections governing child custody and visitation determinations to focus on child safety. Second, it clarifies that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child and that children have the right to be safe and free from abuse. The most significant changes in the bill involve strengthening the existing presumption against custody to a perpetrator of domestic violence, to among other things, apply to visitation as well. Finally, the bill provides that the existing judicial training on domestic violence also include training on the detriment to children of residing in a home where domestic violence occurs. This bill is supported by, among others, the California Protective Parents Association and the Family Violence Appellate Project, who write of the dangers to children under current law and the need to strengthen existing law to better protect children from abuse. The Association of Certified Family Law Specialists supports the best interests and judicial training provisions of the bill, but opposes all the enhancements to the presumption against custody to a batterer (except requiring that certain information be in writing or on the record), arguing that these changes could escalate custody litigation and could cause "good parents" to lose access to their children.

SUMMARY: Clarifies the best interests determination for child custody and legislative findings and declarations on child custody, and strengthens the presumption against custody to a perpetrator of domestic violence. Specifically, this bill:

1. Requires the court, when making a best interests of the child determination in a custody or visitation case, to make the decision consistent with the revised legislative findings and declarations that (a) the health, safety, and welfare of the child is the court’s primary concern when determining the best interests of the child, and the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child; and (b) a child should have frequent and continuing contact with both parents; but when (a) and (b) are in conflict, requires any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.
2. Finds and declares that children have the right to be free from abuse and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.
3. Adds the following to the presumption against custody to a party that a court finds has perpetrated domestic violence within the previous five years:
   1. A presumption against unsupervised visitation;
   2. Extension of the presumption to a party who has committed domestic violence against any person that the party has a close relationship with, as defined by the Domestic Violence Protection Act;
   3. Clarification that the five-year presumption runs from the court’s finding of domestic violence;
   4. Permitting the presumption against custody or unsupervised visitation to be overcome if both:
      1. It is in the best interests of the child to allow such contact; and
      2. On balance, the other existing factors support such contact;
   5. Requiring the court, if it finds that the presumption has been overcome, to state its reasons in writing or on the record; and
   6. Requiring the court, in any evidentiary hearing in which custody or visitation is sought and where an allegation of domestic violence is made, to determine if the presumption may apply before issuing a custody or visitation order.
4. Requires that existing judicial training on domestic violence also include training on the detriment to children of residing in a home where domestic violence occurs.

EXISTING LAW:

1. Requires that custody be granted, according to a set order of preference, based on the best interests of the child, as provided. (Family Code Section 3040. Unless otherwise stated, all further statutory references are to that code.)
2. Requires the court in making a best interests determination, to consider all of the following, among other relevant factors:
   1. The health, safety, and welfare of the child;
   2. Any history of abuse or domestic violence by the parent seeking custody of the child against a child, the other parent, or another person, as provided;
   3. The nature and amount of contact with both parents; and
   4. The habitual or continual use of drugs or abuse of alcohol.

Where there are allegations of child abuse or domestic violence, or drug or alcohol abuse, and the court gives custody to that parent, requires the court to state its reasons in writing or on the record. (Section 3011.)

1. Provides that the Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. Provides that the Legislature finds and declares that it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing in order to affect this policy, except where the contact would not be in the child’s best interests. Where the policies set forth above are in conflict, requires that any custody or visitation order be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (Section 3020.)
2. Requires the court to grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. (Section 3100.)
3. Creates a rebuttable presumption against custody of a child to a parent who, the court finds, has perpetrated domestic violence against the other party, the child, or the child’s sibling within the previous five years. Requires the court, in considering whether to overcome the presumption against custody, to consider, among other things, whether giving that parent custody is in the child’s best interests; whether the perpetrator has completed a batterer’s treatment program, substance abuse program or parenting classes; and whether there have been subsequent acts of domestic violence. (Section 3044.)
4. Requires the Judicial Council to establish judicial training programs for individuals who perform duties in domestic violence matters, including, but not limited to, judges, referees, commissioners, mediators, and others as deemed appropriate by the Judicial Council. Requires that the training program include a domestic violence session in any orientation session conducted for newly appointed or elected judges and an annual training session in domestic violence. Requires that the training programs include instruction in all aspects of domestic violence. (Government Code Section 68555; California Rules of Court, Rule 10.464.)

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

COMMENTS: All too often, children involved in contested custody and visitation matters in family court are subject to abuse, including child abuse, child sexual abuse, and exposure to domestic violence. California has been at the forefront in establishing laws to protect children from these abuses, but children involved in family court disputes still experience harm that could be prevented with more protective custody and visitation orders. This bill seeks to increase those protections and help ensure that children in custody and visitation arrangements established in family court are safe from harm.

The research is clear that exposure to domestic violence harms children, both initially and throughout their lives. It goes without saying that children are harmed if they are physically abused, including if they are sexually abused. It is equally true that children are harmed when neglected or subjected to emotional harm, and children are subject to removal from their families and made dependents of the juvenile court for such neglect or abuse. (See Welfare & Institutions Code Section 300.)

Recent research confirms that even if children are not the direct targets of abusive behavior, but are exposed to domestic violence in their household, they can suffer severe and lasting harm. The Adverse Childhood Experiences (ACE) study, a collaboration between the Centers for Disease Control (CDC) and Kaiser Permanente, has studied the effect of child abuse and related childhood adversarial experiences on health consequences through surveys and health exams of over 17,000 members of the Kaiser HMO beginning in 1995. CDC continues to update those surveys. That study found that adverse childhood experiences, including exposure to domestic violence, can cause immediate and long-term adverse impacts to children, including increased risk of alcoholism, heart disease, depression, illicit drug use, poor academic achievement, poor work performance, risk of domestic violence and suicide, and early death. (Felitti et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, American Journal of Preventative Medicine (May 1998) Vol. 14, Issue 4, pp. 245-258.) The study has been replicated across more states, reaching the same conclusions. (CDC, Adverse Childhood Experiences Reported by Adults --- Five States, 2009, Morbidity and Mortality Weekly Report (December 17, 2010).) The dangers to children exposed to domestic violence are succinctly set forth in this summary of the results from the ACE study:

The ACE research demonstrates that exposure to domestic violence can increase risk for physical, mental health, and substance abuse conditions. Furthermore, research on children who witness domestic violence found that they face an increased risk for mental health issues related to juvenile delinquency, antisocial behavior, and escalated rates of depression, anxiety, and PTSD. The impact of chronic domestic violence exposure in childhood was found to have long-term effects throughout the life span. (National Association of Social Workers, The Adverse Childhood Experiences (ACE) Study: Implications for Mothers’ & Children’s Exposure to Domestic Violence, Spring Practice Perspectives (May 2013).)

Simply put, it is harmful to children, both immediately and throughout their lives, to be exposed to domestic violence.

If that were not enough, another reason to protect children from a parent who commits domestic violence is because there is a significant overlap between those who commit domestic violence against a partner and those who commit child abuse. In a concurring opinion to a recent court decision where the appellate court overturned a trial court's denial of renewal of a protective order, Justice Streeter wrote of the "abundance of social science studies showing a direct correlation between abuse against a parent and abuse against the children of that parent." (De la Luz Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 402. He found:

Within this body of social science literature, most of the studies show that in 30–60 percent of families where either child abuse or spousal abuse exists, both forms of the abuse exist, a phenomenon no doubt reflective of the sad reality that some batterers abuse children as a way to inflict pain on the abused spouse. There is also a documented link in the severity of spousal and related child abuse. A number of the studies show that the more severe the spousal abuse, the more severely the battered spouse's child is likely to be abused. The overlap between children witnessing domestic violence and being abused themselves has been widely documented as well. (Id. at 402-03 (citations omitted).)

Both direct child abuse and exposure to domestic violence harm children, and our statutes should support the prevention of these harms in family court through appropriate protective and custody orders.

California law recognizes the harms caused to children by abuse and domestic violence. Existing law already recognizes the harm caused to children as a result of abuse or domestic violence. When determining the best interests of a child – the key determination of a custody or visitation decision – the court must consider, among other factors, the health, safety, and welfare of the child, and any history of abuse or domestic violence by the parent seeking custody of the child against a child, the other parent, or other person with whom that parent has an intimate relationship. (Section 3011.)

In addition, there are two legislative declarations regarding public policies for child custody. First, it is the public policy of California to assure that: 1) the health, safety, and welfare of children is the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody of, or visitation with, children; and 2) the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. Second, it is the public policy of California to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing, except where the contact would not be in the best interest of the child. Where the two policies are in conflict, any custody or visitation order must be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (Section 3020.)

While the provisions in Sections 3011 and 3020 are well-stated, it is not entirely clear, under existing law, how these two sections work together.

There is also a rebuttable presumption against custody to a batterer. (Section 3044.) That provision creates a rebuttable presumption against custody to a parent who, the court finds, has perpetrated domestic violence against the other party, the child, or the child’s sibling within the previous five years. The requirement that a court make a finding of domestic violence is satisfied by, among other things, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence or abuse within the Domestic Violence Protective Act. The requirement of a finding is also satisfied if a court has made a finding under this section within the last five years.

In considering whether to overcome the presumption, the court must consider a series of factors, including, among other things, whether giving that parent custody is in the child’s best interests; whether the perpetrator has completed a batterer’s treatment program, substance abuse program or parenting classes; and whether there have been subsequent acts of domestic violence.

This bill seeks to clarify how courts make child custody and visitation determinations in order to strengthen abuse protections for children. This bill seeks to strengthen protections for children and prevent harm, both immediate and long-term, from abuse and domestic violence in several key ways. First, the bill seeks to better tie together the two existing sections governing child custody and visitation determinations. Currently the Section 3011 lists factors that a court must consider in making its best interest of the child determination for awarding custody or visitation, but makes no mention of the legislative findings and declarations on some of those factors in Section 3020. This bill clarifies that the best interests determination under Section 3011 must be consistent with the legislative findings and declarations set out in Section 3020.

In addition, the bill clarifies, under the legislative findings and declaration in Section 3020, that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child and that children have the right to be safe and free from abuse. While the clarifications of these legislative findings and declarations may seem so obvious as to not require any clarification, occasional family law decisions demonstrate the need for the clarification, especially given the recent research on the long-term, detrimental effects of children's exposure to domestic violence. Supporters of this bill have shared information on various cases where trial court custody decisions do not appear to have adequately protected children from abuse or exposure to domestic violence, appearing instead to prioritize contact with both parents over child safety.

The presumption against custody to a batterer was established 20 years ago and has not recently been updated to better protect against the long-term harms to children exposed to domestic violence. The presumption against awarding custody to a perpetrator of domestic violence was first established in law nearly 20 years ago by AB 840 (Kuehl), Chap. 455, Stats. 1999. It was updated slightly 15 years ago through SB 265 (Kuehl), Chap. 243, Stats. 2003, which addressed several of the substantial issues that had been found by family law attorneys and domestic violence advocates to hinder the implementation of the original presumption in order to limit inconsistent application of the presumption around California. Since then advocates have found additional problems with implementation of the presumption that have put children in jeopardy, and this bill includes long-needed updates to better protect children from harm.

First and foremost, this bill applies to visitation as well as custody, so that if a court finds that a party has perpetrated domestic violence within the past five years, the presumption would apply to prevent, not just custody of the child, but also unsupervised visitation with the child, unless the presumption has been overcome. Visitation orders can potentially give a parent as much time or more than a custody order (for example, a visitation order could provide for multiple weekday overnight visits and full weekend visits). Even if the time is shorter, significant harm can still occur. If it is not safe to give custody to a parent with a recent history of domestic violence, it may well not be safe to give that parent unsupervised visitation with the child. In addition to the time the child will spend with the batterer, the child will likely be exposed to the transfers between the parents, which can create unique opportunities for witnessing abusive behavior. This bill will not prevent visitation; it simply requires the court to determine, if the court has made a finding of recent domestic violence triggering the presumption, if the presumption has been overcome by a preponderance of the evidence before unsupervised visitation can be ordered.

Second, the current presumption against custody to a batterer only applies if the batterer has abused the other party, the child, or the child’s sibling. However, if the batterer is now abusing his or her new partner, the presumption would not apply, even though the child's danger of being exposed to domestic violence, or becoming a victim herself, would still exist. This bill extends the presumption to cover those permitted under the Domestic Violence Protection Act, which includes a spouse or former spouse, a person the parent is dating, a person with whom the parent has a child, or a close relative. (Section 6211.) This expansion would better protect the child from being exposed to domestic violence and potentially suffering lifetime trauma. And, simply expanding the people to whom the presumption may apply will not prevent a parent from seeing the child. It will just ensure that the court first determines if the presumption is overcome and if it is safe for the child to spend time with that parent.

Third, the bill provides that the presumption runs for five years from the court's finding of domestic violence. Courts have not uniformly applied the existing five-year period and this change will help ensure that the five-year period is uniform across the state and that children are protected during this entire period. Again, this does not prevent custody or visitation orders during the time period. It just requires courts to determine if the presumption is overcome and if children can safely spend time with their parents who have perpetrated domestic violence in the recent past.

Next, the bill clarifies how the presumption against custody can be overcome. Under existing law, the court must consider a series of factors, including whether giving the batterer custody is in the child’s best interest, whether he or she has completed a batterer’s treatment program, substance abuse program or parenting classes, and whether there have been subsequent acts of domestic violence. While the child's best interests is included as one of the factors, it is not impossible, as the law is currently crafted, for the court to determine that the presumption against custody was overcome, even if it was not in the child's best interests to do so. This bill clarifies that the presumption can only be overcome if it is in the child's best interests to give the parent custody or visitation and the other factors, on balance, support that decision. This modest change will help ensure that the presumption cannot be overcome unless allowing contact with the parent who has perpetrated domestic violence is in the child's best interests.

Fifth, this bill clarifies that if the court finds that the presumption has been overcome, it must state its reasons in writing or on the record. This is not a new requirement. Section 3011 (e) requires that, where there are allegations of child abuse or domestic violence against a parent and the court gives sole or joint custody to that parent, the court must state its reasons in writing or on the record. In the case of Section 3044, there are not mere allegations of abuse or domestic violence; rather, the court has already found that the parent seeking custody has committed domestic violence. Thus, under Section 3011 (e), the court is already required to put in writing or on the record its reasoning for giving that batterer custody. This bill just conforms the two sections. This change is also consistent with Celia S. v. Hugo H. (2016) 3 Cal.App.5^th 655, 662, which held that, under Section 3011 (e), if "the trial court determines a parent has overcome the section 3044 presumption and awards sole or joint custody to a parent who committed domestic violence, the court must state the reasons for its ruling in writing or on the record." The Family Violence Appellate Project, one of the bill's supporters, notes how important a record is in these cases: "Given that approximately 90 percent of litigants in California family courts have no attorneys, it is crucial that courts give such explanations so the parents, future trial court judges dealing with the same parties, and appellate courts understand the basis for the original custody award." (Footnote omitted.)

Finally, this bill requires that if an allegation of domestic violence is made in any hearing in which custody or visitation is sought, the court must determine if the Section 3044 presumption applies before issuing a custody or visitation order. This is just a common sense measure to ensure that Section 3044 is actually implemented properly. An allegation of domestic violence against a parent, without more, should not create a presumption against custody to that parent. However, if an allegation is made, the court first must determine if the presumption might apply before making a custody award. If courts do not, upon receiving an allegation of domestic violence, even have to consider whether the Section 3044 presumption applied, the goal of that section – to protect children from the known harm of exposure to domestic violence – would be substantially undermined. This amendment does not make it any more likely that a court will find that the presumption exists; it simply requires that the court at least consider whether or not it might.

The Association of Certified Family Law Specialists opposes most of the changes to the presumption against custody to a batterer. The Association of Certified Family Law Specialists (ACFLS) supports the best interests clarifications, discussed above, and the judicial training provision, discussed below, but opposes all of the enhancements to the presumption against custody to a batterer, except requiring that certain information be in writing or on the record. The group argues that the changes to the presumption could escalate custody litigation, cause "good parents" to lose access to their children, and are "overbroad, over-reaching, ambiguous in some parts and can result in the loss to a child of all contact with a parent." In particular, ACFLS argues that the expansion of the presumption to unsupervised visitation and to batterers who may abuse a new roommate or a recent ex-partner applies "in all circumstance of domestic violence – regardless of the spectrum" and could deny a parent who has not, for example, completed a 52-week batterer's treatment program, unsupervised time with the child.

This bill, however, would not necessarily prevent custody or unsupervised visitation in these instances. If the presumption applies, the court does not, as ACFLS suggests, have to require that the batterer has complied with all of the factors in Section 3044 (b). Rather the court must find that custody or unsupervised visitation is in the child's best interests, as provided, and that the additional factors, including for example whether the batterer has complied with conditions of probation and successfully completed various programs, on balance support the important legislative findings set forth in Section 3020. Consistent with Section 3020, this bill prioritizes the child's health, safety, and welfare over contact with a parent who has a history of domestic violence and could harm the child, but is not a complete bar to contact. The court has discretion to determine if the presumption against contact has been overcome.

Additionally, ACFLS believes that the bill's provision that the presumption against custody applies for five years following the court's finding of domestic violence is ambiguous. As stated in the bill, the presumption applies for five years after the finding. During that time, the court can award custody or unsupervised visitation to the batterer if the court determines that the presumption has been overcome. After five years, the presumption would no longer apply unless the court has made a new finding of domestic violence. Additionally, this provision does not modify the changed circumstances requirement – which requires changed circumstances before a final custody order can be changed. That requirement still exists. A subsequent inapplicability of the presumption could well be a changed circumstance.

This bill also modifies the required judicial training on domestic violence to ensure judges have information on the latest studies on the harms caused by domestic violence. Existing law and court rules require that judges receive various training, including specific training in family law and domestic violence. (See Government Code Sections 68553, 6855; California Rules of Court, Rules 10.463, 10.464.) The training on domestic violence is required to include "all aspects of domestic violence." (Government Code Section 68555.) This bill expands that duty slightly to specifically require that the domestic violence training include instruction on the detriment to children of residing in a home where domestic violence occurs. Given the extensive research on the harms caused to children who are exposed to violence (see the ACE study discussed above), it seems eminently reasonable that when judges, referees, commissioners, and mediators are receiving their required training on domestic violence they should also receive training on the harms caused to children by being exposed to domestic violence. It is hoped that this training will help ensure that court decisions in cases involving domestic violence better protect children from the harms they may suffer, both immediately and in the long-term.

ARGUMENTS IN SUPPORT: The Family Violence Appellate Project is "aware of the many trial court decisions in this state in which sole or joint custody is awarded to a parent who has committed domestic violence against the other parent. This has continued to happen despite clear legislative directives in Family Code sections 3011, 3020, and 3044. . . . AB 2044 strengthens these three code sections, providing further protections for children from being in custody or visitation settings with abusive parents."

In support of the bill, Professor Kelly Weisberg of University of California Hastings College of Law writes: "Exposing children to violence harms them and creates a significant threat to their health and well-being. Additionally, children exposed to violence are often physically abused themselves. This bill will better protect children by helping prevent them from being placed with parents who will harm them."

California Protective Parents Association adds:

There is an epidemic of domestic violence and child abuse in our state. Many victims are working hard to free themselves from abusers, but if they have children, it is much harder due to the courts’ proclivity to place children in unprotected contact with those abusers.

As a direct result of family courts placing children at risk, there were 6 child murders in California by violent fathers during their parenting time in 2017. AB 2044 will make a big difference, not only by keeping children from being killed, but also preventing children from being forced to live in brutal homes.

REGISTERED SUPPORT / OPPOSITION:

Support

Association of Certified Family Law Specialists (support in part, oppose in part)

California Protective Parents Association

Center for Judicial Excellence

Family Violence Appellate Project

U.C. Hastings College of the Law Professor D. Kelly Weisberg

Opposition

Association of Certified Family Law Specialists (oppose in part, support in part)

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