Existing law authorizes a court to request the local child welfare services agency to conduct an investigation of allegations of child abuse, including child sexual abuse, made during a child custody proceeding. Existing law requires a social worker to investigate these court-referred allegations of child abuse to the same extent as any other child abuse allegations, including interviewing a child 4 years of age or older under specific circumstances. Existing law requires the local child welfare services agency, upon completion of the investigation, to report its findings to the court.

This bill would require a court to request the local child welfare services agency to conduct an investigation of allegations of child abuse, including child sexual abuse, made during a child custody proceeding, when the court determines that it cannot protect the child from future child abuse, either through custody or protective orders. This bill would require the local welfare agency, upon completion of the investigation, to report its findings to the court. By requiring a local child welfare services agency to conduct an investigation under these additional circumstances, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes a court to request the local child welfare services agency to conduct an investigation of allegations of child abuse, including child sexual abuse, made during a child custody proceeding. Existing law requires a social worker to investigate these court-referred allegations of child abuse to the same extent as any other child abuse allegations, including interviewing a child 4 years of age or older under specific circumstances. Existing law requires the local child welfare services agency, upon completion of the investigation, to report its findings to the court. The Child Abuse and Neglect Reporting Act requires the Department of Justice to maintain a database of investigations of known or suspected child abuse or severe neglect, known as the Child Abuse Central Index (CACI).

This bill would require a judge who makes a finding by a preponderance of evidence of sexual abuse following an evidentiary hearing to determine child custody to refer that finding to the Department of Justice pursuant to the provisions relating to the CACI, if the person found to have committed sexual abuse was a party to the proceedings and in court and represented by counsel for the proceedings. court to request the local child welfare services agency to conduct an investigation of allegations of child abuse, including child sexual abuse, made during a child custody proceeding, when the court determines that it cannot protect the child from future child abuse, either through custody or protective orders. This bill would require the local welfare agency, upon completion of the investigation, to report its findings to the court. By requiring a local child welfare services agency to conduct an investigation under these additional circumstances, this bill would impose a state-mandated local program.

(1)Existing law authorizes a court to request the local child welfare services agency to conduct an investigation of allegations of child abuse, including child sexual abuse, made during a child custody proceeding. Existing law requires a social worker to investigate these court-referred allegations of child abuse to the same extent as any other child abuse allegations, including interviewing a child 4 years of age or older under specific circumstances. Existing law requires the local child welfare services agency, upon completion of the investigation, to report its findings to the court. The Child Abuse and Neglect Reporting Act requires the Department of Justice to maintain a database of investigations of known or suspected child abuse or severe neglect, known as the Child Abuse Central Index (CACI).

(1)Existing law authorizes a court to request the local child welfare services agency to conduct an investigation of allegations of child abuse, including child sexual abuse, made during a child custody proceeding. Existing law requires a social worker to investigate these court-referred allegations of child abuse to the same extent as any other child abuse allegations, including interviewing a child 4 years of age or older under specific circumstances. Existing law requires the local child welfare services agency, upon completion of the investigation, to report its findings to the court.

This bill would require a court to report its finding that a party to a child custody proceeding had committed sexual abuse, as defined, to the local child welfare services agency to conduct an investigation. By requiring a local child welfare services agency to conduct an investigation under these additional circumstances, this bill would impose a state-mandated local program. The bill would require the court finding to be made under specific circumstances, including, among others, that the party was represented by counsel during the child custody proceeding.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

GOVERNOR'S VETO

GV Bill Id:AB 2294

Author:(Obernolte)

As Enrolled Ver:August 20, 2018

2/3 vote

Original Committee Reference: JUD.

SUMMARY: Requires the court, if allegations of child abuse are made in a child custody proceeding as provided, to request an investigation from the child welfare agency. Specifically, this bill provides that if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court determines that the court cannot, through custody or protective orders, protect the child from future child abuse, requires the court to request that the local child welfare services agency conduct an investigation of the allegations as provided. Upon completion of the investigation, requires the child welfare agency to report its findings to the court.

EXISTING LAW:

1. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court has concerns regarding the child's safety, to take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child's safety until an investigation can be completed. (Family Code Section 3027(a).)
2. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding, to request that the local child welfare services agency conduct an investigation of the allegations as provided. Upon completion of the investigation, requires the child welfare agency to report its findings to the court. (Family Code Section 3027(b).)
3. Allows a juvenile court to adjudicate a child a dependent of the court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300.)
4. Requires the child welfare agency, whenever a social worker believes that within the county there is a child who has suffered or is at risk of suffering abuse and neglect, to immediately make any investigation deemed necessary to determine whether child welfare services should be offered to the family and whether dependency proceedings should be commenced in the juvenile court. Provides that no inference regarding the credibility of the allegations or the need for child welfare services should be drawn from the mere existence of a child custody or visitation dispute. (Welfare & Institutions Code Section 328.)
5. Requires certain mandated reporters, as defined, to report to certain law enforcement or county child welfare agencies whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. (Penal Code Section 11164 et seq.)
6. Requires the investigating agency, as provided, to forward to the Department of Justice a report of every case it actively investigates of known or suspected child abuse or severe neglect that is determined to be substantiated, as provided, for inclusion in the Child Abuse Central Index. (Penal Code Section 11169.)

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

COMMENTS: This bill seeks to better protect children involved in contested custody cases who may be subject to child abuse, including child sexual abuse. Under current law if an allegation of child abuse is made during a custody proceeding, a court may refer the case to the local child welfare agency for investigation. This bill would expand that permissive referral to additionally require that if the court determines that it cannot, through custody or protective orders, protect the child from future child abuse the court must request that the local child welfare services agency conduct an investigation of the allegation.

The Judicial Council's Elkins Family Law Task Force recognized the concerns this bill seeks to address. The Elkins Family Law Task Force was appointed by the Judicial Council in May 2008 for the purpose of conducting a comprehensive review of family law proceedings in order to make recommendations to the Judicial Council that would increase access to justice for family law litigants; ensure fairness and due process; and provide for more effective and consistent family law rules, policies, and procedures. In its final report, the Elkins Family Law Task Force noted that courts are often confronted with allegations of child abuse and violence in the home and must seriously consider those allegations when making custody decisions. Addressing those concerns, the Task Force made the following recommendations:

Child welfare or protective services (CPS) should be required to become involved in all cases involving child abuse and neglect, even if such involvement is limited to investigating initial allegations. CPS should not treat those cases differently from cases involving the same or similar issues in juvenile court simply because one parent has sought relief in family court. Rather, CPS should be required to assist the court in fully investigating and providing appropriate resources as it would to children handled through its protection system. (See, for example, Welfare & Institutions Code, Section 328.) (Elkins Family Law Task Force, Final Reports and Recommendations, pp. 56 (April 2010).)

Some, though not all, of those recommendations were included in AB 939 (Judiciary), Chapter 352, Statutes of 2010, which implemented much of what the Elkins Task Force recommended. In particular, that bill:

1. Allowed the court, if allegations of child abuse are made during a child custody proceeding, to take any reasonable steps to protect the child, including making a referral to the local child welfare services agency;
2. Provided that when a county child welfare social worker is investigating whether a child has suffered abuse or neglect, no inference regarding the credibility of the allegations of the need for child welfare services may be drawn from the mere existence of a family law custody dispute, and that a referral from a family court to child welfare, based on allegations of child abuse, must be investigated to the same extent as any other allegation of child abuse; and

This bill mandates that certain allegations of child abuse must be reported to the child welfare agency. Despite implementation of the child safety recommendations contained in AB 939, concerns have remained about the intersection between family law and child welfare. This bill seeks to clarify requirements in that intersection by requiring that if an allegation of child abuse is made during a child custody proceeding and the court determines that the court cannot, through its own custody or protective orders, protect the child from future child abuse, then the court must request that the local child welfare services agency conduct an investigation of the allegations as provided. The child welfare agency would be required to report its findings back to the court. The goal of this change is to make sure the child is safe by requiring, instead of permitting, the court to refer a case to the child welfare agency if the court determines it cannot craft custody orders or restraining orders that will adequately protect the child from harm. The child welfare agency will then investigate and, if it deems appropriate, potentially bring the child and the parents into the child welfare system. And, given that existing law requires that no inference regarding the credibility of the allegations or the need for child welfare services can be drawn from the mere existence of a child custody or visitation dispute, the child welfare agency should investigate a referral from a family law judge – particularly one in which the judge does not think he or she can protect the child from harm – at least as seriously as any other report.

This bill does not reinvent the wheel – which today provides that the child welfare agency is to investigate reports of child abuse or neglect, take appropriate steps to protect children from harm, and report abusers to the Department of Justice's Child Abuse Central Index. This bill instead builds on that system and requires family courts to use it if they determine that they cannot properly protect children there.

GOVERNOR'S VETO MESSAGE:

This bill requires a court holding a child custody proceeding to request an investigation by a child welfare services agency if the court determines that it cannot protect the child from child abuse.

There is not an identified problem with existing law. Currently, the family court can request an investigation by the local child welfare agency when there are allegations of child abuse. This bill could potentially have the unintended consequence of delaying appropriate referrals of child abuse if a court believes it must first make the findings described in the bill prior to requesting an investigation.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0005332

 CONSENT  

Bill No: AB 2294

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/26/18

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

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 78-0, 5/29/18 - See last page for vote

SUBJECT:

SOURCE: California Conference of Bar Associations

DIGEST:

This bill requires a court holding a child custody proceeding to request an investigation by a child welfare services agency if the court determines that it cannot protect the child from child abuse, as specified.

ANALYSIS:

Existing law:

1. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court has concerns regarding the child’s safety, to take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child’s safety until an investigation can be completed. (Fam. Code Sec. 3027(a).)
2. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding, to request that the local child welfare services agency conduct an investigation of the allegations as provided. Existing law provides that upon completion of the investigation, the child welfare agency must report its findings to the court. (Fam. Code Sec. 3027(b).)
3. Requires provides that a child who has suffered certain serious harms or substantial risks of harm by the child’s parent or guardian, or as a result of the parent or guardian’s failure or inability to provide adequate supervision, as specified, is within the jurisdiction of the juvenile court, which may adjudge the child to be a dependent child of the court. (Welf. & Inst. Code Sec. 300.)
4. Requires a child welfare agency, whenever a social worker believes that within the county there is a child who has suffered or is at risk of suffering abuse and neglect, to immediately make any investigation deemed necessary to determine whether child welfare services should be offered to the family and whether dependency proceedings should be commenced in the juvenile court. Existing law also provides that no inference regarding the credibility of the allegations or the need for child welfare services should be drawn from the mere existence of a child custody or visitation dispute. (Welf. & Inst. Code Sec. 328.)

This bill:

1. Requires a court, if allegations of child abuse are made during a child custody proceeding, and the court determines that it cannot protect the child from future child abuse, either through custody or protective orders, to request that the local child welfare services agency conduct an investigation of the allegations, as specified.
2. Requires the child welfare services agency, upon completion of its investigation, to report its findings to the court.

Background

A fundamental responsibility of judges in family law is to protect the safety and well-being of children. Under existing law, if, during a custody proceeding, allegations of child abuse are made, a court may take any reasonable steps it deems appropriate to protect the child’s safety until an investigation can be completed, including requesting that a local child welfare services agency conduct an investigation of the allegations.

This bill seeks to better protect children in contested custody cases who may be victims of child abuse. The bill requires a court, if allegations of child abuse are made during a custody proceeding, and the court determines that the court cannot, through custody or protective orders, protect the child from future child abuse, to request that the local child welfare services agency conduct an investigation of the allegations. The bill requires the child welfare agency, upon completion of its investigation, to report its findings to the court.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/7/18)

California Conference of Bar Associations (source)

Family Law Section of the California Lawyers Association

OPPOSITION: (Verified 8/7/18)

None received

ARGUMENTS IN SUPPORT: The author writes:

AB 2294 will better protect children involved in contested custody cases who have been found by the court to be subject to child abuse, including severe child sexual abuse. It does so by requiring the court to refer the suspicion or finding to the local child welfare agency for investigation, if the court determines that it cannot, though custody or protective orders, protect the child from future abuse. The objective is to increase the chances the investigating agency will substantiate the findings through its investigation and forward the information to the Department of Justice for inclusion in the Child Abuse Central Index.

ASSEMBLY FLOOR: 78-0, 5/29/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

Prepared by: Josh Tosney / JUD. / (916) 651-4113

8/8/18 10:01:08

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2294 (Author:Obernolte)

Version: April 2, 2018

Hearing Date: June 26, 2018

Fiscal: Yes

Urgency: No

Consultant: JDT

SUBJECT

Child custody proceedings: finding of sexual abuse

DESCRIPTION

This bill would require a court holding a child custody proceeding to request an investigation by a child welfare services agency if the court determines that it cannot protect the child from child abuse, as specified.

BACKGROUND

A fundamental responsibility of judges in family law is to protect the safety and well-being of children. Under existing law, if, during a custody proceeding, allegations of child abuse are made, a court may take any reasonable steps it deems appropriate to protect the child’s safety until an investigation can be completed, including requesting that a local child welfare services agency conduct an investigation of the allegations.

This bill seeks to better protect children in contested custody cases who may be victims of child abuse. The bill would require a court, if allegations of child abuse are made during a custody proceeding, and the court determines that the court cannot, through custody or protective orders, protect the child from future child abuse, to request that the local child welfare services agency conduct an investigation of the allegations. The bill would require the child welfare agency, upon completion of its investigation to report its findings to the court.

CHANGES TO EXISTING LAW

Existing law allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court has concerns regarding the child’s safety, to take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child’s safety until an investigation can be completed. (Fam. Code Sec. 3027(a).)

Existing law allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding, to request that the local child welfare services agency conduct an investigation of the allegations as provided. Existing law provides that upon completion of the investigation, the child welfare agency must report its findings to the court. (Fam. Code Sec. 3027(b).)

Existing law provides that a child who has suffered certain serious harms or substantial risks of harm by the child’s parent or guardian, or as a result of the parent or guardian’s failure or inability to provide adequate supervision, as specified, is within the jurisdiction of the juvenile court, which may adjudge the child to be a dependent child of the court. (Welf. & Inst. Code Sec. 300.)

Existing law requires a child welfare agency, whenever a social worker believes that within the county there is a child who has suffered or is at risk of suffering abuse and neglect, to immediately make any investigation deemed necessary to determine whether child welfare services should be offered to the family and whether dependency proceedings should be commenced in the juvenile court. Existing law also provides that no inference regarding the credibility of the allegations or the need for child welfare services should be drawn from the mere existence of a child custody or visitation dispute. (Welf. & Inst. Code Sec. 328.)

This bill would require a court, if allegations of child abuse are made during a child custody proceeding, and the court determines that it cannot protect the child from future child abuse, either through custody or protective orders, to request that the local child welfare services agency conduct an investigation of the allegations, as specified.

This bill would require the child welfare services agency, upon completion of its investigation, to report its findings to the court.

COMMENT

1. Stated need for the bill

The author writes:

AB 2294 will better protect children involved in contested custody cases who have been found by the court to be subject to child abuse, including severe child sexual abuse. It does so by requiring the court to refer the suspicion or finding to the local child welfare agency for investigation, if the court determines that it cannot, though custody or protective orders, protect the child from future abuse. The objective is to increase the chances the investigating agency will substantiate the findings through its investigation and forward the information to the Department of Justice for inclusion in the Child Abuse Central Index.

2. Enhancing children’s safety

A fundamental responsibility of judges in family law is to protect the safety and well-being of children. Typically, cases involving the abuse or neglect of a child are heard in dependency court. However, family courts often have to deal with allegations and incidents of child abuse in determining custody cases. When allegations of abuse or neglect arise in this context, family law cases can start to cross over into dependency cases. But children in custody cases do not have access to the same type of services as those in dependency court. For example, they do not have the benefit of child welfare services, social workers, Court Appointed Special Advocates, or the right to counsel. These services are not only crucial for children, but also play an important role in providing courts with the right information and tools to properly resolve cases involving allegations of abuse or neglect. Families that seek relief in family court instead of entering the system through a dependency case can find themselves without the benefit of these services.

This bill seeks to better protect children in contested custody cases who may be victims of child abuse. Under current law, if an allegation of child abuse is made during a custody proceeding, a court may refer the case to the local child welfare agency for investigation. This bill would additionally require that if the court determines that it cannot, through custody or protective orders, protect a child from future child abuse, the court must request the local child welfare services agency to conduct an investigation of the allegation, and the agency would be required to report its findings back to the court. The goal of this change is to protect children by requiring, instead of permitting, the court to refer a case to the child welfare agency if the court determines it cannot craft custody orders or restraining orders that will adequately protect a child from harm. The child welfare agency will then investigate and, depending on its findings, potentially bring the child and the parents into the child welfare system.

Support: Family Law Section of the California Lawyers Association

Opposition: None known

HISTORY

Source: California Conference of Bar Associations

Related Pending Legislation: None known

Prior Legislation:

AB 939 (Assembly Judiciary Committee, Ch. 352, Stats. 2010) allowed a court, if allegations of child abuse are made during a child custody proceeding, to take any reasonable steps to protect the child, including making a referral to the local child welfare services agency.

Prior Vote:

Assembly Floor (Ayes 78, Noes 0)

Assembly Appropriations Committee (Ayes 16, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

ASSEMBLY THIRD READING

ATR Bill Id:AB 2294

Author:(Obernolte)

As Amended Ver:April 2, 2018

Majority vote

SUMMARY: Requires the court, if allegations of child abuse are made in a child custody proceeding as provided, to request an investigation from the child welfare agency. Specifically, this bill provides that if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court determines that the court cannot, through custody or protective orders, protect the child from future child abuse, requires the court to request that the local child welfare services agency conduct an investigation of the allegations as provided. Upon completion of the investigation, requires the child welfare agency to report its findings to the court.

EXISTING LAW:

1. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court has concerns regarding the child's safety, to take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child's safety until an investigation can be completed. (Family Code Section 3027(a).)
2. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding, to request that the local child welfare services agency conduct an investigation of the allegations as provided. Upon completion of the investigation, requires the child welfare agency to report its findings to the court. (Family Code Section 3027(b).)
3. Allows a juvenile court to adjudicate a child a dependent of the court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300.)
4. Requires the child welfare agency, whenever a social worker believes that within the county there is a child who has suffered or is at risk of suffering abuse and neglect, to immediately make any investigation deemed necessary to determine whether child welfare services should be offered to the family and whether dependency proceedings should be commenced in the juvenile court. Provides that no inference regarding the credibility of the allegations or the need for child welfare services should be drawn from the mere existence of a child custody or visitation dispute. (Welfare & Institutions Code Section 328.)
5. Requires certain mandated reporters, as defined, to report to certain law enforcement or county child welfare agencies whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. (Penal Code Section 11164 et seq.)
6. Requires the investigating agency, as provided, to forward to the Department of Justice a report of every case it actively investigates of known or suspected child abuse or severe neglect that is determined to be substantiated, as provided, for inclusion in the Child Abuse Central Index. (Penal Code Section 11169.)

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown ongoing general fund (GF) costs, likely low to mid hundreds of thousands of dollars annually, to county welfare services agencies to conduct an increased number of investigations and to report their findings to the court. In calendar year 2017, approximately 46,000 cases of sexual abuse were reported to the counties from all sources, including the courts. It is unknown how many additional cases would be referred from the courts under this bill, and what portion of those cases would have been referred anyway under existing law. For example, if 300 to 500 new cases are referred and subsequently assessed and investigated, total county costs, assuming six hours of social worker time, would be in the range of $180,000 to $300,000. These costs are potentially reimbursable upon a determination by the Commission on State Mandates.
2. Negligible fiscal impact to the courts to refer additional cases.

COMMENTS: This bill seeks to better protect children involved in contested custody cases who may be subject to child abuse, including child sexual abuse. Under current law if an allegation of child abuse is made during a custody proceeding, a court may refer the case to the local child welfare agency for investigation. This bill would expand that permissive referral to additionally require that if the court determines that it cannot, through custody or protective orders, protect the child from future child abuse the court must request that the local child welfare services agency conduct an investigation of the allegation.

The Judicial Council's Elkins Family Law Task Force recognized the concerns this bill seeks to address. The Elkins Family Law Task Force was appointed by the Judicial Council in May 2008 for the purpose of conducting a comprehensive review of family law proceedings in order to make recommendations to the Judicial Council that would increase access to justice for family law litigants; ensure fairness and due process; and provide for more effective and consistent family law rules, policies, and procedures. In its final report, the Elkins Family Law Task Force noted that courts are often confronted with allegations of child abuse and violence in the home and must seriously consider those allegations when making custody decisions. Addressing those concerns, the Task Force made the following recommendations:

Child welfare or protective services (CPS) should be required to become involved in all cases involving child abuse and neglect, even if such involvement is limited to investigating initial allegations. CPS should not treat those cases differently from cases involving the same or similar issues in juvenile court simply because one parent has sought relief in family court. Rather, CPS should be required to assist the court in fully investigating and providing appropriate resources as it would to children handled through its protection system. (See, for example, Welf. & Inst. Code, § 328.) (Elkins Family Law Task Force, Final Reports and Recommendations, pp. 56 (April 2010).)

Some, though not all, of those recommendations were included in AB 939 (Judiciary), Chap. 352, Stats. 2010, which implemented much of what the Elkins Task Force recommended. In particular, that bill:

1. Allowed the court, if allegations of child abuse are made during a child custody proceeding, to take any reasonable steps to protect the child, including making a referral to the local child welfare services agency;
2. Provided that when a county child welfare social worker is investigating whether a child has suffered abuse or neglect, no inference regarding the credibility of the allegations of the need for child welfare services may be drawn from the mere existence of a family law custody dispute, and that a referral from a family court to child welfare, based on allegations of child abuse, must be investigated to the same extent as any other allegation of child abuse; and

This bill mandates that certain allegations of child abuse must be reported to the child welfare agency. Despite implementation of the child safety recommendations contained in AB 939, concerns have remained about the intersection between family law and child welfare. This bill seeks to clarify requirements in that intersection by requiring that if an allegation of child abuse is made during a child custody proceeding and the court determines that the court cannot, through its own custody or protective orders, protect the child from future child abuse, then the court must request that the local child welfare services agency conduct an investigation of the allegations as provided. The child welfare agency would be required to report its findings back to the court. The goal of this change is to make sure the child is safe by requiring, instead of permitting, the court to refer a case to the child welfare agency if the court determines it cannot craft custody orders or restraining orders that will adequately protect the child from harm. The child welfare agency will then investigate and, if it deems appropriate, potentially bring the child and the parents into the child welfare system. And, given that existing law requires that no inference regarding the credibility of the allegations or the need for child welfare services can be drawn from the mere existence of a child custody or visitation dispute, the child welfare agency should investigate a referral from a family law judge – particularly one in which the judge does not think he or she can protect the child from harm – at least as seriously as any other report.

This bill does not reinvent the wheel – which today provides that the child welfare agency is to investigate reports of child abuse or neglect, take appropriate steps to protect children from harm, and report abusers to the Department of Justice's Child Abuse Central Index. This bill instead builds on that system and requires family courts to use it if they determine that they cannot properly protect children there.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0003024

Date of Hearing: April 18, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2294

Author:(Obernolte) – As Amended Ver:April 2, 2018

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

SUMMARY:

This bill requires the court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court determines that the court cannot, through custody or protective orders, protect the child from future child abuse, to request the local child welfare services agency conduct an investigation of the allegations. Upon completion of the investigation, the child welfare agency must report its findings to the court.

FISCAL EFFECT:

1. Unknown ongoing GF costs, likely low to mid hundreds of thousands of dollars annually, to county welfare services agencies to conduct an increased number of investigations and to report their findings to the court. In calendar year 2017, approximately 46,000 cases of sexual abuse were reported to the counties from all sources, including the courts. It is unknown how many additional cases would be referred from the courts under this bill, and what portion of those cases would have been referred anyway under existing law. For example, if 300 to 500 new cases are referred and subsequently assessed and investigated, total county costs, assuming six hours of social worker time, would be in the range of $180,000 to $300,000. These costs are potentially reimbursable upon a determination by the Commission on State Mandates.
2. Negligible fiscal impact to the courts to refer additional cases.

COMMENTS:

Purpose and Background. This bill seeks to better protect children involved in contested custody cases who may be subject to child abuse, including child sexual abuse.

Under current law, if an allegation of child abuse is made during a custody proceeding, a court may refer the case to the local child welfare agency for investigation. This bill would additionally require that if the court determines that it cannot, through custody or protective orders, protect a child from future child abuse the court must request the local child welfare services agency conduct an investigation of the allegation. The child welfare agency would be required to report its findings back to the court. The goal of this change is to ensure a child is safe by requiring, instead of permitting, the court to refer a case to the child welfare agency if the court determines it cannot craft custody orders or restraining orders that will adequately protect a child from harm.

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

Date of Hearing: April 3, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2294

Author:(Obernolte) – As Amended Ver:April 2, 2018

PROPOSED CONSENT

SUBJECT: Child custody proceedings: child abuse

KEY ISSUE: SHOULD A FAMILY LAW COURT BE REQUIRED TO REFER A MATTER TO THE CHILD WELFARE AGENCY FOR INVESTIGATION IF THERE IS AN ALLEGATION OF CHILD ABUSE AND THE COURT DETERMINES THAT IT CANNOT ADEQUATELY PROTECT THE CHILD FROM HARM?

SYNOPSIS

This bill seeks to better protect children involved in contested custody cases who may be subject to child abuse, including child sexual abuse. Under current law if an allegation of child abuse is made during a custody proceeding, a court may refer the case to the local child welfare agency for investigation. This bill would expand that permissive referral to additionally require that if the court determines that it cannot, through custody or protective orders, protect the child from future child abuse the court must request that the local child welfare services agency conduct an investigation of the allegations as provided. This bill is sponsored by the Conference of California Bar Associations and, as amended, has no reported opposition.

SUMMARY: Requires the court, if allegations of child abuse are made in a child custody proceeding as provided, to request an investigation from the child welfare agency. Specifically, this bill provides that if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court determines that the court cannot, through custody or protective orders, protect the child from future child abuse, requires the court to request that the local child welfare services agency conduct an investigation of the allegations as provided. Upon completion of the investigation, requires the child welfare agency to report its findings to the court.

EXISTING LAW:

1. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding and the court has concerns regarding the child’s safety, to take any reasonable, temporary steps as the court, in its discretion, deems appropriate under the circumstances to protect the child’s safety until an investigation can be completed. (Family Code Section 3027 (a).)
2. Allows a court, if allegations of child abuse, including child sexual abuse, are made during a child custody proceeding, to request that the local child welfare services agency conduct an investigation of the allegations as provided. Upon completion of the investigation, requires the child welfare agency to report its findings to the court. (Family Code Section 3027 (b).)
3. Allows a juvenile court to adjudicate a child a dependent of the court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300.)
4. Requires the child welfare agency, whenever a social worker believes that within the county there is a child who has suffered or is at risk of suffering abuse and neglect, to immediately make any investigation deemed necessary to determine whether child welfare services should be offered to the family and whether dependency proceedings should be commenced in the juvenile court. Provides that no inference regarding the credibility of the allegations or the need for child welfare services should be drawn from the mere existence of a child custody or visitation dispute. (Welfare & Institutions Code Section 328.)
5. Requires certain mandated reporters, as defined, to report to certain law enforcement or county child welfare agencies whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. (Penal Code Section 11164 et seq.)
6. Requires the investigating agency, as provided, to forward to the Department of Justice a report of every case it actively investigates of known or suspected child abuse or severe neglect that is determined to be substantiated, as provided, for inclusion in the Child Abuse Central Index. (Penal Code Section 11169.)

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

COMMENTS: This bill seeks to better protect children involved in contested custody cases who may be subject to child abuse, including child sexual abuse. Under current law if an allegation of child abuse is made during a custody proceeding, a court may refer the case to the local child welfare agency for investigation. This bill would expand that permissive referral to additionally require that if the court determines that it cannot, through custody or protective orders, protect the child from future child abuse the court must request that the local child welfare services agency conduct an investigation of the allegation.

The Judicial Council’s Elkins Family Law Task Force recognized the concerns this bill seeks to address. The Elkins Family Law Task Force was appointed by the Judicial Council in May 2008 for the purpose of conducting a comprehensive review of family law proceedings in order to make recommendations to the Judicial Council that would increase access to justice for family law litigants; ensure fairness and due process; and provide for more effective and consistent family law rules, policies, and procedures. The task force was formed at the suggestion of the California Supreme Court in Elkins v. Superior Court (2007) 41 Cal.4th 1369, in which the Contra Costa Superior Court had, by local rule, limited the testimony that could be presented in a family law case. The Supreme Court overturned the rule, finding:

In light of the volume of cases faced by trial courts, we understand their [Contra Costa’s] efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life, dividing all of a family’s assets, or determining levels of spousal and child support. The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1368.)

In its final report, the Elkins Family Law Task Force noted that courts are often confronted with allegations of child abuse and violence in the home and must seriously consider those allegations when making custody decisions. Addressing those concerns, the Task Force made the following recommendations:

Child welfare or protective services (CPS) should be required to become involved in all cases involving child abuse and neglect, even if such involvement is limited to investigating initial allegations. CPS should not treat those cases differently from cases involving the same or similar issues in juvenile court simply because one parent has sought relief in family court. Rather, CPS should be required to assist the court in fully investigating and providing appropriate resources as it would to children handled through its protection system. (See, for example, Welf. & Inst. Code, § 328.) Children in these cases should have access to counsel where appropriate, to child welfare services, to social workers, and to Court Appointed Special Advocates (CASAs). Statutory, rule, or regulatory changes that may be necessary to implement this recommendation should be undertaken. Additionally, to more effectively address the best interest of children, family courts, parties, and their attorneys should have access to information and reports collected by CPS during these processes and procedures, even if CPS decides that filing a petition in juvenile court is not warranted. Legislation to clarify family court access to these records should be developed, with consideration being paid to protecting confidentiality and due process rights. (Elkins Family Law Task Force, Final Reports and Recommendations, pp. 56-57 (April 2010).)

Some, though not all, of those recommendations were included in AB 939 (Judiciary), Chap. 352, Stats. 2010, which implemented much of what the Elkins Task Force recommended. In particular, that bill:

• Allowed the court, if allegations of child abuse are made during a child custody proceeding, to take any reasonable steps to protect the child, including making a referral to the local child welfare services agency;
• Provided that when a county child welfare social worker is investigating whether a child has suffered abuse or neglect, no inference regarding the credibility of the allegations of the need for child welfare services may be drawn from the mere existence of a family law custody dispute, and that a referral from a family court to child welfare, based on allegations of child abuse, must be investigated to the same extent as any other allegation of child abuse; and
• Provided an exception to the confidentiality of child welfare agency records for certain participants in family law cases by authorizing the child welfare agency to permit inspection, and to provide copies, of its records, provided the information remains confidential.

This bill mandates that certain allegations of child abuse must be reported to the child welfare agency. Despite implementation of the child safety recommendations contained in AB 939, concerns have remained about the intersection between family law and child welfare. This bill seeks to clarify requirements in that intersection by requiring that if an allegation of child abuse is made during a child custody proceeding and the court determines that the court cannot, through its own custody or protective orders, protect the child from future child abuse, then the court must request that the local child welfare services agency conduct an investigation of the allegations as provided. The child welfare agency would be required to report its findings back to the court. The goal of this change is to make sure the child is safe by requiring, instead of permitting, the court to refer a case to the child welfare agency if the court determines it cannot craft custody orders or restraining orders that will adequately protect the child from harm. The child welfare agency will then investigate and, if it deems appropriate, potentially bring the child and the parents into the child welfare system. And, given that existing law requires that no inference regarding the credibility of the allegations or the need for child welfare services can be drawn from the mere existence of a child custody or visitation dispute, the child welfare agency should investigate a referral from a family law judge – particularly one in which the judge does not think he or she can protect the child from harm – at least as seriously as any other report.

This bill does not reinvent the wheel – which today provides that the child welfare agency is to investigate reports of child abuse or neglect, take appropriate steps to protect children from harm, and report abusers to the Department of Justice's Child Abuse Central Index. This bill instead builds on that system and requires family courts to use it if they determine that they cannot properly protect children there.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

Opposition

None on file

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