WHEREAS, According to the California Partnership to End Domestic Violence, one-half of the approximately 15,000 victims sheltered in Californias state-funded domestic violence programs each year are children and 75 percent of domestic violence victims have children; and

WHEREAS, The United States Department of Justice estimates that in 30 to 60 percent of families where either domestic violence or child maltreatment is identified, children experience both forms of abuse within the home; and

WHEREAS, According to the federal Centers for Disease Control and Prevention (CDC), child abuse is a major public health issue, with a lifetime cost of over $200,000 for each victim; and

WHEREAS, According to the CDC, children who experience adverse childhood experiences, also known as ACEs, including abuse, are at an increased risk for chronic, adverse physical health effects as adults; and

WHEREAS, According to the UCLA Womens Law Journal, research shows that victims of domestic violence are at a great disadvantage in child custody disputes and mediations when there is an allegation of domestic violence; and

WHEREAS, According to the Domestic Violence Legal Empowerment and Appeals Project, abusive parents, including those who are accused and adjudicated batterers, tend to be granted sole custody or joint custody by the courts, placing children at risk; and

WHEREAS, Article I of the California Constitution declares that all people have the inalienable right to pursue and obtain safety. A childs safety should be a priority over all other considerations; and

WHEREAS, Court reporters should be present to create records in all family law matters, particularly in domestic violence and contested custody cases; now, therefore, be it

Resolved by the Assembly of the State of California, That all court-related professionals should be trauma-informed and trained in recognizing, evaluating, and understanding evidence and the impacts of domestic violence and child abuse; and be it further

Resolved, That a court reporter should record all hearings in domestic violence and contested custody cases, and all litigants should have access to the court records; and be it further

Resolved, That when a child witnesses domestic violence or reports being is injured or abused, or when there is substantial evidence of child injury, family courts should ensure that the safety of the child has priority over all other considerations in any custody or visitation decision; and be it further

Resolved, That the Chief Clerk of the Assembly transmit copies of this resolution to the California Supreme Court, the Judicial Council, and the author for appropriate distribution.

WHEREAS, According to the California Partnership to End Domestic Violence, one-half of the approximately 15,000 victims sheltered in Californias state-funded domestic violence programs each year are children and 75 percent of domestic violence victims have children; and

WHEREAS, The United States Department of Justice estimates that in 30 to 60 percent of families where either domestic violence or child maltreatment is identified, children experience both forms of abuse within the home; and

WHEREAS, According to the federal Centers for Disease Control and Prevention (CDC), child abuse is a major public health issue, with a lifetime cost of over $200,000 for each victim; and

WHEREAS, According to the CDC, children who experience adverse childhood experiences, also known as ACEs, including abuse, are at an increased risk for chronic, adverse physical health effects as adults; and

WHEREAS, According to the UCLA Womens Law Journal, research shows that victims of domestic violence are at a great disadvantage in child custody disputes and mediations when there is an allegation of domestic violence; and

WHEREAS, According to the Domestic Violence Legal Empowerment and Appeals Project, abusive parents, including those who are accused and adjudicated batterers, tend to be granted sole custody or joint custody by the courts, placing children at risk; and

WHEREAS, Article I of the California Constitution declares that all people have the inalienable right to pursue and obtain safety. A childs safety should be a priority over all other considerations; and

WHEREAS, In family courts, there is great need for an increased presence of court reporters to create records and legal representation for those who are unrepresented during custody litigation cases; now, therefore, be it

Resolved by the Assembly of the State of California, That all court-related professionals should be trauma-informed and trained in recognizing, evaluating, and understanding evidence and the impacts of domestic violence and child abuse; and be it further

Resolved, That a court reporter should record all hearings in contested custody cases, and all litigants should have access to the court records; and be it further

Resolved, That when a child witnesses domestic violence or reports being injured or abused, or when there is substantial evidence of child injury, family courts should ensure that the safety of the child has priority over all other considerations in any custody or visitation decision; and be it further

Resolved, That the Chief Clerk of the Assembly transmit copies of this resolution to the California Supreme Court, the Judicial Council, and the author for appropriate distribution.

Date of Hearing: August 14, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:HR 113

Author:(Rubio) – As Amended Ver:August 6, 2018

PROPOSED CONSENT

SUBJECT: DOMESTIC VIOLENCE: CHILD CUSTODY

KEY ISSUE: SHOULD THE LEGISLATURE RESOLVE TO BETTER SUPPORT VICTIMS OF DOMESTIC VIOLENCE AND CHILDREN SUBJECT TO ABUSE IN FAMILY LAW CASES?

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. This measure states findings about the risks for children in domestic violence and contested custody cases, and presents legislative resolutions to help protect children in these instances, including that all court professionals be trained to recognize domestic violence and child abuse; that court reporters record all domestic violence and contested custody hearings and that all litigants have access to court records; and that when a child witnesses domestic violence, or is injured or abused, family courts should ensure that the safety of the child has priority over all other considerations. This resolution is supported by the California Protective Parents Association, the City of Claremont, and the Los Angeles County Sheriff's Department. It has no opposition.

SUMMARY: Resolves that court professionals should be trained to recognize domestic violence and child abuse, that court reporters should record all contested custody and domestic violence proceedings, and that, when children witness domestic violence or are injured or abused, child safety should have priority over all other considerations in custody and visitation cases. Specifically, this measure:

1. Makes the following findings:
   1. One-half of the approximately 15,000 victims sheltered in California’s state-funded domestic violence programs each year are children and 75 percent of domestic violence victims have children;
   2. The United States Department of Justice estimates that in 30 to 60 percent of families where either domestic violence or child maltreatment is identified, children experience both forms of abuse within the home;
   3. According to the federal Centers for Disease Control and Prevention (CDC), child abuse is a major public health issue, with a lifetime cost of over $200,000 for each victim;
   4. According to the CDC, children who experience adverse childhood experiences (ACEs), including abuse, are at an increased risk for chronic, adverse physical health effects as adults;
   5. According to the UCLA Women’s Law Journal, research shows that victims of domestic violence are at a great disadvantage in child custody disputes and mediations when there is an allegation of domestic violence;
   6. According to the Domestic Violence Legal Empowerment and Appeals Project, abusive parents, including those who are accused and adjudicated batterers, tend to be granted sole custody or joint custody by the courts, placing children at risk;
   7. The California Constitution declares that all people have the inalienable right to pursue and obtain safety, and a child’s safety should be a priority over all other considerations; and
   8. Court reporters should be present in all family law matters, particularly in domestic violence and contested custody cases, to create records.
2. Makes the following resolutions:
   1. All court-related professionals should be trauma-informed and trained in recognizing, evaluating, and understanding evidence and the impacts of domestic violence and child abuse;
   2. A court reporter should record all hearings in domestic violence and contested custody cases, and all litigants should have access to the court records; and
   3. When a child witnesses domestic violence or is injured or abused, family courts should ensure that the safety of the child has priority over all other considerations in any custody or visitation decision.

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;
   4. The habitual or continual use of drugs or abuse of alcohol; and
   5. 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.)
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 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.)
4. 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.)
5. 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. (Section 3044.)
6. 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.)
7. Requires that a court reporter take down all testimony, objections made, rulings of the court, exceptions taken, arraignments, pleas, sentences, arguments of the attorneys to the jury, and statements and remarks made and oral instructions given by the judge or other judicial officer, in the following cases:
   1. In a civil case, on the order of the court or at the request of a party;
   2. In a felony case, on the order of the court or at the request of the prosecution, the defendant, or the attorney for the defendant; and
   3. In a misdemeanor or infraction case, on the order of the court. (Code of Civil Procedure Section 269.)
8. Permits a judge to have a court reporter in felony, unlimited civil, probate, juvenile and selected family law proceedings, including child custody and child support proceedings, take down any opinion, judgment or testimony, as provided, in short hand and transcribe, as the court deems necessary. (Code of Civil Procedure Section 274a.)
9. Provides that the court may direct the making of a verbatim record and that payment be from the county treasury on order of the court for: (a) criminal matters; (b) juvenile proceedings; (c) proceedings to declare a minor free from custody; (d) proceedings under the Lanterman-Petris-Short Act; and (e) as otherwise provided by law. (Government Code Section 69952.)
10. Allows a court, if an official court reporter or an official reporter pro tempore is unavailable, to use electronic recording equipment only for a limited civil case, a misdemeanor or infraction case, or for the internal purpose of monitoring the performance of subordinate judicial officers, hearing officers, and temporary judges. (Government Code Section 69957 (a)-(b).)

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 measure states findings about the risks for children in domestic violence and contested custody cases, and presents legislative resolutions to help protect children in these instances, including that all court professionals be trained to recognize domestic violence and child abuse; that court reporters record all domestic violence and contested custody hearings and that all litigants have access to court records; and that when a child witnesses domestic violence, or is injured or abused, family courts should ensure that the safety of the child has priority over all other considerations.

In support of the measure, the author writes:

Child safety is not explicitly described as the first priority in custody and visitation determinations, although Family Code Section 3011 requires courts to consider the child’s health, safety and welfare among other factors it finds relevant. Because safety is not the paramount concern, sometimes the court finds other factors more relevant.

Allegations of domestic violence and child abuse are sometime viewed with skepticism by family court professionals, resulting in situations where children are placed into unsupervised contact or custody of identified and adjudicated abusers. Children who are ordered into the unsupervised care of their abusers or domestic violence perpetrators are likely to be subjected to ongoing abuse.

Since 2008, 53 children in California have been murdered by a parent in custody/ separation situations. Six of these deaths occurred in 2017.

This resolution is known as “Piqui’s Resolution,” named for one of the 53 murdered children. Piqui, like many children, spoke of abuse but the courts dismissed the allegations and the father gained some unsupervised custody. He was just five years old when the court decision allowed the father to take his son to Disneyland. Piqui was murdered in April 2017, but his body was not found for months.

This resolution is similar to House Concurrent Resolution 72, which was introduced last year and has 51 co-sponsors, 21 of whom are from California. While that bill was referred to committee, no hearing has been scheduled.

The research is clear that children are victims of domestic violence and that exposure to domestic violence harms children, both initially and throughout their lives. Far too often, children are harmed by domestic violence, even if they are not the direct targets. According to research assembled by the California Partnership to End Domestic Violence, 75 percent of domestic violence victims have children under 18 at home and just over half of all those in California domestic violence shelters are children. (California Partnership to End Domestic Violence, California Domestic Violence Fact Sheet (http://www.ywcasgv.org/DV_Fact_Sheet_2011.pdf).)

Recent research confirms that even children who are not the direct targets of abusive behavior, but are exposed to domestic violence in their household, can suffer severe and lasting harm. The Adverse Childhood Experiences 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).)

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 it is expensive. CDC has found that the lifetime cost for each victim of child maltreatment is $210,012. (CDC, Child abuse and neglect cost the United States $124 billion, Press Release (Feb 1, 2012).)

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 in existing law. 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.)

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.

The author is concerned that perpetrators of domestic violence may still get custody of their children. Researchers point to studies that show that men – and particularly perpetrators of domestic violence – are favored in child custody cases. (See Joan S. Meier and Sean Dickson, Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation, 35 Law & Ineq. 311, 314-15 (2017).) They argue that more must be done to protect victims of domestic violence and their children in the family law context. And there are concrete things that can be done to provide such protection:

The ease and frequency with which batterers take advantage of the custody process to bully and abuse their victims is deeply troubling. Family courts must take a proactive role in preventing abuse through the legal system. Family court judges and mediators should attend trainings on the psychological profiles of batterers and victims, so they are more capable of identifying domestic violence histories in court or in mediation sessions. Family court judges and mediators should vigilantly watch for abuse throughout the mediation process, and all states should allow domestic violence victims to opt out of mediation. In litigation, judges should remain aware of the possibility of litigation abuse, and sanction batterers who file frivolous motions. Courts should be wary of granting custody or visitation to batterers, and if they do, courts should carefully structure all agreements to decrease the need for contact between the parties. . . . Steps like these will help family courts ensure greater access, fairer outcomes, and increased safety for victims of domestic violence and their children. (Emmaline Campbell, How Domestic Violence Batterers Use Custody Proceedings in Family Courts to Abuse Victims, and How Courts Can Put a Stop to It, 24 UCLA Women's L.J. 41, 66 (2017).)

This measure provides concrete ways that family courts can help protect victims of domestic violence and their children, including proper training of court staff.

While court reporters are permitted in court proceedings, they are not mandated in civil cases, including family law cases, and many family courts do not have court reporters, causing significant hardship for parties. Code of Civil Procedure Section 269 provides that an official court reporter shall transcribe civil, felony, and misdemeanor proceedings if ordered by the court or, in civil or felony cases, if requested by the parties. However this provision does not require that, in civil cases, a court reporter be provided free of charge, nor does it require that transcripts be provided for free. Parties have a right to hire a court reporter for their civil matters, but unless specifically required otherwise, the court is currently not required to provide a court reporter for them.

Except as provided for indigent parties under the Transcript Reimbursement Fund (a limited fund that helps indigent parties in civil actions obtain transcripts for free, see Business & Professions Code Section 8030.2 et seq.), courts are only authorized to provide free transcripts in limited instances: criminal matters, juvenile proceedings, Lanterman-Petris-Short Act proceedings, or other proceedings provided by law. (Government Code Section 69952.) In fact, state law provides that: “Except as provided in [Government Code] Section 69952, no reporter shall perform any service in a civil action other than transcriptions until his fee for it has been deposited with the clerk of the court or with the reporter.” (Government Code Section 69953.)

According to a recent survey of trial courts by the Judicial Council, currently 33 courts do not provide court reporters in some or all family law cases. As a result of the dearth of court reporters in family law proceedings, there is all too often no official record of the proceeding and little ability to appeal a ruling, even a grossly unjust one. There is also all too frequent confusion by unrepresented litigants – who make up the vast majority of family law litigants – about the basic nature of the court's orders, and there is no recording or reporting of any kind for them to review after the hearing, often making it impossible to draft accurate orders. Yet family law matters generally, and the specific matters covered by this bill – child custody and domestic violence – arguably include some of the most important matters facing children and families.

Moreover, without court reporters in the courtroom, there is very limited review of judges' actions, as well as their behavior. The then-Director-Chief Counsel of the Commission on Judicial Performance (CJP) wrote, in a letter to the Governor, the Chief Justice, and legislative leaders, that she was concerned that the significant reduction in court reporters impairs the Commission's "ability to fulfill its mandate to protect the public, and undermines the administration of justice in court proceedings in California." (Letter from Victoria Henley to Governor Brown, Supreme Court Chief Justice Cantil-Sakauye, Speaker Pérez and Senate President Pro Tempore Steinberg (Feb. 29, 2012).) Without a record of court proceedings, CJP states:

[I]t can be difficult, if not impossible, to establish what occurred in the courtroom, where 95% of the complaints to the Commission each year originate. In December 2011, there were transcripts or recordings in only half of the Commission's pending investigations that involve courtroom conduct. . . . The absence of transcripts or recordings thus impedes the commission in determining that misconduct has occurred and in protecting the public from abusive judges. Equally important, the absence of a record of court proceedings prevents the swift and complete exoneration of judges by the commission when appropriate. (Id. (footnote omitted).)

The California Supreme Court recently recognized the need for court reporters. Just last month, the California Supreme Court, in a medical malpractice case Jameson v. Desta (2018) 2018 Cal. LEXIS 4883, held that an indigent plaintiff who was granted a fee waiver had to be provided with a court reporter. In that case, the San Diego trial court told the parties that no court reporter was available and if they wanted a record they would have to provide their own reporter. The parties did not. The trial court granted a motion for nonsuit in favor of the defendant, and the plaintiff appealed. However, because there was no record of the court proceedings, the appellate court found that the plaintiff could not show that any error occurred at the trial court and upheld the trial court's judgment for the defendant. The Supreme Court reversed, holding that litigants who qualify for fee waivers must be provided court reporters if those who can afford a court reporter are allowed to bring them to court. Writing for a unanimous court, Chief Justice Cantil-Sakauye wrote of the "realistic, crucial importance that the presence of a court reporter currently plays in the actual protection of a civil litigant's legal rights and in providing such a litigant equal access to appellate justice in California."

It is important to note that while many Californians might not qualify for a fee waiver, they may very well still not be able to afford the $862 daily fee for a court reporter in San Diego, $764 in Los Angeles, or $735 in San Francisco. (See Jameson v. Desta, supra, at 21.) This year the courts have been given a significant boost in their budget, with $10 million specifically earmarked for court reporters in family law cases, so it is hoped that most, if not all, courts actually provide court reporters in these important cases, even if the litigants do not qualify for a fee waiver.

This resolution rightly recognizes the importance of having a court reporter record all hearings in domestic violence and contested custody cases, and ensuring that all litigants have access to court records.

ARGUMENTS IN SUPPORT: In support of the measure, the City of Claremont writes: "At a time when issues of domestic violence are at center stage, we must not ignore the effects that domestic violence and child abuse can have on a child's life. HR 113 will help bring timely awareness to a pressing issue affecting many in our communities."

Pending Related Legislation: AB 2044 (Stone) 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. That bill passed both the Assembly and the Senate and is currently awaiting a concurrence vote in the Assembly.

REGISTERED SUPPORT / OPPOSITION:

Support

California Protective Parents Association

City of Claremont

Los Angeles County Sheriff's Department

Opposition

None on file

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