BILL NUMBER: SB 594 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 13, 2015
INTRODUCED BY Senator Wieckowski
FEBRUARY 27, 2015
An act to amend Sections 3111, 3118, and 3170
3170, and 3183 of, and to add Section 3117.5 to, the
Family Code, relating to child custody.
LEGISLATIVE COUNSEL'S DIGEST
SB 594, as amended, Wieckowski. Child custody.
Existing law requires the court to require an evaluation,
investigation, or assessment in any contested proceeding involving
child custody or visitation rights where when
the court has appointed a child custody evaluator or has
referred a case for a full or partial court-connected evaluation,
investigation, or assessment, and the court determines that there is
a serious allegation of child sexual abuse. Existing law establishes
certain minimum requirements for the evaluation, investigation, or
assessment. Existing law authorizes a mediator to submit a
recommendation to the court as to the custody of, or visitation
with, a child. A mediator acting in that capacity is called a
child custody recommending counselor.
This bill would require the Judicial Council to, not later than
January 1, 2016, develop a form that every investigator or
evaluator investigator, evaluator, or child custody
recommending counselor conducting an investigation would be
required to submit to the court. The bill would require the form to
delineate each requirement and require that the investigator
or evaluator person conducting an investigation
provide documentation in, or attached to, the form, showing that
each task has been completed as required. The bill would provide that
on or after January 1, 2016, an investigation that is not documented
on the Judicial Council form would not meet the minimum requirements
for an investigation as required by the provisions described above.
The bill would require, on or after January 1, 2016, that
documentation showing compliance with those requirements and the
results of the investigation be submitted to the court on the form
developed by the Judicial Council.
Existing law also requires a court, if it appears on the face of a
petition, application, or other pleading to modify or obtain a
temporary or permanent custody or visitation order that custody,
visitation, or both are contested, to set the contested issues for
mediation. Existing law provides that domestic violence cases shall
be handled in accordance with a separate written protocol approved by
the Judicial Council.
This bill would require the Judicial Council to, not later than
January 1, 2016, develop a form to be used to help implement the
separate written protocol approved by the Judicial Council.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3111 of the Family Code is amended to read:
3111. (a) In any contested proceeding involving child custody or
visitation rights, the court may appoint a child custody evaluator to
conduct a child custody evaluation in cases where
when the court determines it is in the best interests of
the child. The child custody evaluation shall be conducted in
accordance with the standards adopted by the Judicial Council
pursuant to Section 3117, and all other standards adopted by the
Judicial Council regarding child custody evaluations. If directed by
the court, the court-appointed child custody evaluator shall file a
written confidential report on his or her evaluation on the
form developed pursuant to Section 3117.5. evaluation,
which shall be submitted on, or attached to, the completed form
developed pursuant to Section 3117.5. At least 10 days before
any hearing regarding custody of the child, the report shall be filed
with the clerk of the court in which the custody hearing will be
conducted and served on the parties or their attorneys, and any other
counsel appointed for the child pursuant to Section 3150. The report
may be considered by the court. court if,
(1) it is submitted on, or attached to, the completed Judicial
Council form, and, (2) it documents compliance with the minimum
state-mandated standards applicable to the scope of the evaluation
.
(b) The report shall not be made available other than as provided
in subdivision (a) or Section 3025.5, or as described in Section 204
of the Welfare and Institutions Code or Section 1514.5 of the Probate
Code. Any information obtained from access to a juvenile court case
file, as defined in subdivision (e) of Section 827 of the Welfare and
Institutions Code, is confidential and shall only be disseminated as
provided by paragraph (4) of subdivision (a) of Section 827 of the
Welfare and Institutions Code.
(c) The report may be received in evidence on stipulation of all
interested parties and is competent evidence as to all matters
contained in the report.
(d) If the court determines that an unwarranted disclosure of a
written confidential report has been made, the court may impose a
monetary sanction against the disclosing party. The sanction shall be
in an amount sufficient to deter repetition of the conduct, and may
include reasonable attorney's fees, costs incurred, or both, unless
the court finds that the disclosing party acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust. The court shall not impose a sanction pursuant to
this subdivision that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. This subdivision shall
become operative on January 1, 2010.
(e) The Judicial Council shall, by January 1, 2010, do both
of the following:
(1) Adopt a form to be served with every child custody evaluation
report that informs the report recipient of the confidentiality of
the report and the potential consequences for the unwarranted
disclosure of the report.
(2) Adopt a rule of court to require that, when a court-ordered
child custody evaluation report is served on the parties, the form
specified in paragraph (1) shall be included with the report.
(f) For purposes of this section, a disclosure is unwarranted if
it is done either recklessly or maliciously, and is not in the best
interests of the child.
SEC. 2. Section 3117.5 is added to the Family Code, to read:
3117.5. (a) The Judicial Council shall, no later than January 1,
2016, develop a form to be used by every investigator or evaluator
conducting a child custody evaluation. The form shall delineate each
requirement required by Section 3118 of, and
incorporate any standards established by, Sections 3117 and 3118. The
form shall also incorporate all other standards adopted under this
code regarding child custody eva luations, and
require that the investigator or evaluator provide documentation in,
or attached to, the form showing that each task has been completed as
required. For purposes of this section, a child custody evaluation
means an investigation and analysis of the health, safety, welfare,
and best interest of a child with regard to disputed custody and
visitation issues conducted pursuant to Sections 3111 or
Section 3111, 3118, or 3183 of this code,
Section 730 of the Evidence Code, or Article 1 (commencing
with Section 2032.010) of Chapter 15 of Title 4 of Part 4 of
the Code of Civil Procedure. The child custody evaluation form
shall be consistent with Sections 3011, 3020, and 3044.
(b) Child custody evaluations filed with the court on and after
January 1, 2016, shall be submitted on on, or
attached to, the report form developed pursuant to subdivision
(a). The evaluation report may be considered by the court if,
(1) it is submitted on, or attached to, the completed Judicial
Council form, and, (2) it documents compliance with the minimum
state-mandated standards applicable to the scope of the evaluation
.
SEC. 3. Section 3118 of the Family Code is amended to read:
3118. (a) In any contested proceeding involving child custody or
visitation rights, where the court has appointed a child custody
evaluator or has referred a case for a full or partial
court-connected evaluation, investigation, or assessment, and the
court determines that there is a serious allegation of child sexual
abuse, the court shall require an evaluation, investigation, or
assessment pursuant to this section. When the court has determined
that there is a serious allegation of child sexual abuse, any child
custody evaluation, investigation, or assessment conducted subsequent
to that determination shall be considered by the court only if the
evaluation, investigation, or assessment is conducted in accordance
with the minimum requirements set forth in this section in
determining custody or visitation rights, except as specified in
paragraph (1). For purposes of this section, a serious allegation of
child sexual abuse means an allegation of child sexual abuse, as
defined in Section 11165.1 of the Penal Code, that is based in whole
or in part on statements made by the child to law enforcement, a
child welfare services agency investigator, any person required by
statute to report suspected child abuse, or any other court-appointed
personnel, or that is supported by substantial independent
corroboration as provided for in subdivision (b) of Section 3011.
When an allegation of child abuse arises in any other circumstances
in any proceeding involving child custody or visitation rights, the
court may require an evaluator or investigator to conduct an
evaluation, investigation, or assessment pursuant to this section.
The order appointing a child custody evaluator or investigator
pursuant to this section shall provide that the evaluator or
investigator have access to all juvenile court records pertaining to
the child who is the subject of the evaluation, investigation, or
assessment. The order shall also provide that any juvenile court
records or information gained from those records remain confidential
and shall only be released as specified in Section 3111.
(1) This section does not apply to any emergency court-ordered
partial investigation that is conducted for the purpose of assisting
the court in determining what immediate temporary orders may be
necessary to protect and meet the immediate needs of a child. This
section does apply when the emergency is resolved and the court is
considering permanent child custody or visitation orders.
(2) This section does not prohibit a court from considering
evidence relevant to determining the safety and protection needs of
the child.
(3) Any evaluation, investigation, or assessment conducted
pursuant to this section shall be conducted by an evaluator or
investigator who meets the qualifications set forth in Section
3110.5.
(b) The evaluator or investigator shall, at a minimum, do all of
the following:
(1) Consult with the agency providing child welfare services and
law enforcement regarding the allegations of child sexual abuse, and
obtain recommendations from these professionals regarding the child's
safety and the child's need for protection.
(2) Review and summarize the child welfare services agency file.
No document contained in the child welfare services agency file may
be photocopied, but a summary of the information in the file,
including statements made by the children and the parents, and the
recommendations made or anticipated to be made by the child welfare
services agency to the juvenile court, may be recorded by the
evaluator or investigator, except for the identity of the reporting
party. The evaluator's or investigator's notes summarizing the child
welfare services agency information shall be stored in a file
separate from the evaluator's or investigator's file and may only be
released to either party under order of the court.
(3) Obtain from a law enforcement investigator all available
information obtained from criminal background checks of the parents
and any suspected perpetrator that is not a parent, including
information regarding child abuse, domestic violence, or substance
abuse.
(4) Review the results of a multidisciplinary child interview team
(hereafter MDIT) interview if available, or if not, or if the
evaluator or investigator believes the MDIT interview is inadequate
for purposes of the evaluation, investigation, or assessment,
interview the child or request an MDIT interview, and shall wherever
possible avoid repeated interviews of the child.
(5) Request a forensic medical examination of the child from the
appropriate agency, or include in the report required by paragraph
(6) a written statement explaining why the examination is not needed.
(6) File a confidential written report with the clerk of the court
in which the custody hearing will be conducted and which shall be
served on the parties or their attorneys at least 10 days prior to
the hearing. This report may not be made available other than as
provided in this subdivision. This report shall include, but is not
limited to, the following:
(A) Documentation of material interviews, including any MDIT
interview of the child or the evaluator or investigator, written
documentation of interviews with both parents by the evaluator or
investigator, and interviews with other witnesses who provided
relevant information.
(B) A summary of any law enforcement investigator's investigation,
including information obtained from the criminal background check of
the parents and any suspected perpetrator that is not a parent,
including information regarding child abuse, domestic violence, or
substance abuse.
(C) Relevant background material, including, but not limited to, a
summary of a written report from any therapist treating the child
for suspected child sexual abuse, excluding any communication subject
to Section 1014 of the Evidence Code, reports from other
professionals, and the results of any forensic medical examination
and any other medical examination or treatment that could help
establish or disprove whether the child has been the victim of sexual
abuse.
(D) The written recommendations of the evaluator or investigator
regarding the therapeutic needs of the child and how to ensure the
safety of the child.
(E) A summary of the following information: whether the child and
his or her parents are or have been the subject of a child abuse
investigation and the disposition of that investigation; the name,
location, and telephone number of the children's services worker; the
status of the investigation and the recommendations made or
anticipated to be made regarding the child's safety; and any
dependency court orders or findings that might have a bearing on the
custody dispute.
(F) Any information regarding the presence of domestic violence or
substance abuse in the family that has been obtained from a child
protective agency in accordance with paragraphs (1) and (2), a law
enforcement agency, medical personnel or records, prior or currently
treating therapists, excluding any communication subject to Section
1014 of the Evidence Code, or from interviews conducted or reviewed
for this evaluation, investigation, or assessment.
(G) Which, if any, family members are known to have been deemed
eligible for assistance from the Victims of Crime Program due to
child abuse or domestic violence.
(H) Any other information the evaluator or investigator believes
would be helpful to the court in determining what is in the best
interests of the child.
(I) On and after January 1, 2016, documentation showing compliance
with all requirements of this section and the results of the
investigation shall be submitted to the court on the
on, or attached to, the completed form developed
pursuant to Section 3117.5 by the Judicial Council.
(c) If the evaluator or investigator obtains information as part
of a family court mediation, that information shall be maintained in
the family court file, which is not subject to subpoena by either
party. If, however, the members of the family are the subject of an
ongoing child welfare services investigation, or the evaluator or
investigator has made a child welfare services referral, the
evaluator or investigator shall so inform the family law judicial
officer in writing and this information shall become part of the
family law file. This subdivision may not be construed to authorize
or require a mediator to disclose any information not otherwise
authorized or required by law to be disclosed.
(d) In accordance with subdivision (d) of Section 11167 of the
Penal Code, the evaluator or investigator may not disclose any
information regarding the identity of any person making a report of
suspected child abuse. Nothing in this section is intended to limit
any disclosure of information by any agency that is otherwise
required by law or court order.
(e) The evaluation, investigation, or assessment standards set
forth in this section represent minimum requirements of evaluation
and the court shall order further evaluation beyond these minimum
requirements when necessary to determine the safety needs of the
child.
(f) If the court orders an evaluation, investigation, or
assessment pursuant to this section, the court shall consider whether
the best interests of the child require that a temporary order be
issued that limits visitation with the parent against whom the
allegations have been made to situations in which a third person
specified by the court is present or whether visitation will be
suspended or denied in accordance with Section 3011.
(g) An evaluation, investigation, or assessment pursuant to this
section shall be suspended if a petition is filed to declare the
child a dependent child of the juvenile court pursuant to Section 300
of the Welfare and Institutions Code, and all information gathered
by the evaluator or investigator shall be made available to the
juvenile court.
(h) This section may not be construed to authorize a court to
issue any orders in a proceeding pursuant to this division regarding
custody or visitation with respect to a minor child who is the
subject of a dependency hearing in juvenile court or to otherwise
supersede Section 302 of the Welfare and Institutions Code.
(i) On and after January 1, 2016, documentation showing compliance
with all requirements of this section and the results of the
investigation shall be submitted to the court on, or attached to, the
completed form developed pursuant to Section 3117.5 by the Judicial
Council.
SEC. 4. Section 3170 of the Family Code is amended to read:
3170. (a) If it appears on the face of a petition, application,
or other pleading to obtain or modify a temporary or permanent
custody or visitation order that custody, visitation, or both are
contested, the court shall set the contested issues for mediation.
(b) (1) Domestic violence cases shall be handled by Family Court
Services in accordance with a separate written protocol approved by
the Judicial Council. The Judicial Council shall adopt guidelines for
services, other than services provided under this chapter, that
courts or counties may offer to parents who have been unable to
resolve their disputes. These services may include, but are not
limited to, parent education programs, booklets, video recordings, or
referrals to additional community resources.
(2) The Judicial Council shall, no later than January 1, 2016,
develop a form to be used to help implement the written protocol for
handling domestic violence cases.
SEC. 5. Section 3183 of the Family Code
is amended to read:
3183. (a) Except as provided in Section 3188, the mediator may,
consistent with local court rules, submit a recommendation to the
court as to the custody of or visitation with the child, if the
mediator has first provided the parties and their attorneys,
including counsel for any minor children, with the recommendations in
writing in advance of the hearing. The court shall make an inquiry
at the hearing as to whether the parties and their attorneys have
received the recommendations in writing. If the mediator is
authorized to submit a recommendation to the court pursuant to this
subdivision, the mediation and recommendation process shall be
referred to as "child custody recommending counseling" and the
mediator shall be referred to as a "child custody recommending
counselor." Mediators who make those recommendations are considered
mediators for purposes of Chapter 11 (commencing with Section 3160),
and shall be subject to all requirements for mediators for all
purposes under this code and the California Rules of Court. On and
after January 1, 2012, all court communications and information
regarding the child custody recommending counseling process shall
reflect the change in the name of the process and the name of the
providers.
(b) A child custody recommending counselor who makes child custody
and visitation recommendations to the court is considered a child
custody evaluator for purposes of Chapter 11 (commencing with Section
3160) and is considered a child custody evaluator for purposes of
Chapter 6 (commencing with Section 3110). A child custody
recommending counselor shall be subject to all requirements for
mediators and custody evaluators for all purposes under this code and
the California Rules of Court. Commencing January 1, 2016, a child
custody recommending counselor's report shall be submitted on, or
attached to, the completed form developed pursuant to Section 3117.5.
The recommendation report may be considered by the court if, (1) it
is submitted on, or attached to, the completed Judicial Council form,
and, (2) it documents compliance with the minimum state-mandated
child custody evaluation standards applicable to the scope of the
evaluation.
(b)
(c) If the parties have not reached agreement as a
result of the mediation proceedings, the mediator may recommend to
the court that an investigation be conducted pursuant to Chapter 6
(commencing with Section 3110) or that other services be offered to
assist the parties to effect a resolution of the controversy before a
hearing on the issues.
(c)
(d) In appropriate cases, the mediator may recommend
that restraining orders be issued, pending determination of the
controversy, to protect the well-being of the child involved in the
controversy.