take note. You have an elected representative that cares not about children but about protecting victim feminist mythology.
To representative Beall: I have watched with interest Beall's support of the abuse of children by wanting to craft a bill that gets rid of PAS in CA courts. Fortunately it did not work but the toughening up of false allegations is a good thing because that is what many so called protective parents do. How many dads are in these PP association do you think? Are they allowed in when they are the sole custodial parent.
Beall's bravado as shown on this web site is as misplaced as his original bill. PAS already passes the Frye test for science in USA courts and the Mohan test for science in Canadian courts. It will be interesting to see how it plays out once a case is brought forward.
One thing is a certain. Beall is very misguided and NOW amongst other feminist organizations seem to have him in their back pocket. I remain incredulous that some Americans would elect and allow to stand in office a man who would work against the best interest of children and by doing so allow them to be emotionally abused. I shake my head in wonder. Does Beall not know Parental Alienation is performed by both genders or does he just work for one.
Mike Murphy
Check the ongoing discussion in California here http://parentalalienationcanada.blogspot.com/2009/06/family-law-makeover-california.html or here on the original Sacramento newspaper comment site with the same content. http://www.newsreview.com/sacramento/content?oid=1020581
This legislation is quite different than the misguided State Representative Beall started with. Given PAS already has passed the Frye test in USA case law it will be interesting to see how it will proceed in court actions. False accusers should take note. If you are found out the penalties are steep. There is far too much focus on the term Syndrome that has gotten the Victim Feminists hair in a knot. Any parent, male or female, who seeks the loyalty and involvement of a child in a custody fight is an unfit parent. That is not science, heck it isn't even rocket science, but it is common sense. MJM
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california legislation > ab 612
AB 612
Custody and visitation: nonscientific theories.
LEGISLATIVE COUNSEL'S DIGEST
AB 612, as amended, Beall. Custody and visitation: nonscientific
theories.
Existing law governs the determination of child custody and
visitation with a child in contested proceedings. Existing law
provides for the use of court-appointed investigators, as defined,
including court-appointed evaluators directed by the court to conduct a child custody investigation in those proceedings.
Existing law authorizes the court to appoint a child custody evaluator if the court determines it is in the best interest of the child. If directed by the court, the evaluator is required to file a written confidential report on his or her evaluation. 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.
Existing law requires all child custody evaluators to have completed specified training relating to domestic violence and child abuse.
Existing law requires the Judicial Council to adopt standards for
court-connected evaluations, investigations, and assessments related to child custody. Existing law also requires the Judicial Council to formulate rules of court that establish education, experience, and training requirements for child custody evaluators and to establish related forms, as specified.
This bill would provide that a child's expression of
significant hostility toward a parent may be admitted as possible
corroborating evidence that the parent has abused the child. The bill would prohibit a court from concluding that an accusation of child physical or sexual abuse against a parent is false based solely on the child's expression of significant hostility toward the parent.
The bill would also require that, on and after January 1, 2010, these provisions be included in all training required of child custody evaluators, and would, consequently, require the Judicial Council to revise training standards for child custody evaluators
allegations of physical or sexual abuse against a child are to be
investigated using specified methods of data collection and analysis.
The bill would provide that the rules of evidence applicable in
criminal proceedings shall apply whenever the court considers an allegation of physical or sexual abuse against a child in a custody proceeding. The bill would also provide that unproven, nonscientific theories, including, but not limited to, alienation theories, as specified, are not consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. The bill would prohibit a court from relying upon an unproven, unscientific theory and from accepting into evidence any finding provided by an expert witness or court appointed professional who has relied on an unproven, nonscientific theory that is a basis for that finding. The bill would require the Judicial Council to provide training consistent with these provisions . The bill would
include a statement of legislative intent.
http://www.aroundthecapitol.com/Bills/ab_612 BILL ANALYSIS AB 612 Page 1 Date of Hearing: April 28, 2009 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 612 (Beall) - As Amended: April 22, 2009 As Proposed to Be Amended With RN 09-13247 received Friday, April 24thBILL NUMBER: AB 612 AMENDED BILL TEXT AMENDED IN SENATE JUNE 28, 2009 AMENDED IN ASSEMBLY MAY 5, 2009 AMENDED IN ASSEMBLY APRIL 22, 2009 INTRODUCED BY Assembly Member Beall (Coauthors: Assembly Members Ma, Smyth, and Torrico) (Coauthor: Senator Yee) FEBRUARY 25, 2009 An act to add Section 3027.3 to the Family Code, relating to custody and visitation. LEGISLATIVE COUNSEL'S DIGEST AB 612, as amended, Beall. Custody and visitation: nonscientific theories. Existing law governs the determination of child custody and visitation with a child in contested proceedings. Existing law provides for the use of court-appointed investigators, as defined, including court-appointed evaluators directed by the court to conduct a child custody investigation in those proceedings. Existing law authorizes the court to appoint a child custody evaluator if the court determines it is in the best interest of the child. If directed by the court, the evaluator is required to file a written confidential report on his or her evaluation. 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. Existing law requires all child custody evaluators to have completed specified training relating to domestic violence and child abuse. Existing law requires the Judicial Council to adopt standards for court-connected evaluations, investigations, and assessments related to child custody. Existing law also requires the Judicial Council to formulate rules of court that establish education, experience, and training requirements for child custody evaluators and to establish related forms, as specified. This bill would provide that a child's expression of significant hostility toward a parent may be admitted as possible corroborating evidence that the parent has abused the child. The bill would prohibit a court from concluding that an accusation of child physical or sexual abuse against a parent is false based solely on the child's expression of significant hostility toward the parent. The bill would also require that, on and after January 1, 2010, these provisions be included in all training required of child custody evaluators, and would, consequently, require the Judicial Council to revise training standards for child custody evaluators allegations of physical or sexual abuse against a child are to be investigated using specified methods of data collection and analysis. The bill would provide that the rules of evidence applicable in criminal proceedings shall apply whenever the court considers an allegation of physical or sexual abuse against a child in a custody proceeding. The bill would also provide that unproven, nonscientific theories, including, but not limited to, alienation theories, as specified, are not consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. The bill would prohibit a court from relying upon an unproven, unscientific theory and from accepting into evidence any finding provided by an expert witness or court appointed professional who has relied on an unproven, nonscientific theory that is a basis for that finding. The bill would require the Judicial Council to provide training consistent with these provisions . The bill would include a statement of legislative intent. 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. It is the intent of the Legislature that courts strive to protect the safety of children by ensuring that abuse allegations are investigated appropriately and that protecting children from physical and sexual abuse is the highest priority in custody and visitation decisions. SEC. 2. Section 3027.3 is added to the Family Code , to read: 3027.3. (a) Allegations of physical or sexual abuse against a child are to be investigated using methods of data collection and analysis consistent with the requirements of Section 3118, as further clarified in paragraph (2) of subdivision (e) of Rule of Court 5.220, as it read on January 1, 2009. (b) The rules of evidence applicable in criminal proceedings shall apply whenever the court considers an allegation of physical or sexual abuse against a child in a proceeding pursuant to this division. (c) Unproven, nonscientific theories, including, but not limited to, alienation theories that assume that a child's report of physical or sexual abuse by one parent is influenced or fabricated by the other parent, are not consistent with generally accepted clinical, forensic, scientific, diagnostic, or medical standards. The court may not rely upon an unproven, unscientific theory and the court may not accept into evidence any finding provided by an expert witness or court appointed professional who has relied on an unproven, nonscientific theory that is a basis for that finding. (d) Nothing in this section shall limit the consideration of actual evidence, behaviors, statements, or conduct by either parent or by the child. (e) The Judicial Council shall provide training consistent with this section. SECTION 1. It is the intent of the Legislature that courts strive to protect the safety and best interest of children in custody matters by ensuring that allegations of physical and sexual abuse are investigated appropriately or referrals are made to the child welfare services agency. SEC. 2. Section 3027.3 is added to the Family Code, to read: 3027.3. (a) A child's expression of significant hostility toward a parent may, in the discretion of the court, be admitted as possible corroborating evidence that the parent has abused the child. The court may not conclude that an accusation of child physical or sexual abuse against a parent is false based solely on the child's expression of significant hostility toward the parent. (b) On and after January 1, 2010, the provisions of this section shall be included in all training required pursuant to Section 3110.5.SUBJECT : CHILD CUSTODY: EVIDENTIARY BAN KEY ISSUES : 1)IN ORDER TO PROTECT CHILDREN FROM POTENTIAL ABUSE, SHOULD NEW TYPES OF LEGISLATIVE ACTION BE UNDERTAKEN TORESTRICTPROHIBIT CERTAIN EVIDENCEINAPPROPRIATE EVIDENCEFROM CONSIDERATION BY A FAMILY COURT? 2)SHOULD, AS THIS BILL SEEKS, Any EVIDENCE that might DEMONSTRATe THAT ONE PARENT IS SEEKING TO ALIENATE THE CHILDREN FROM THE OTHER PARENT, if it can be characterized as "parental alienation" evidence, BE BARRED FROM THE judge's CONSIDERATION WHEN DETERMINING WHAT CUSTODY ARRANGEMENT WOULD APPEAR TO BE IN THE CHILDREN'S BEST INTERESTS? 3)SHOULD All other relevant EVIDENCE CONTAINED IN A PROFESSIONAL EVALUATOR'S CHILD CUSTODY REPORT that might assist the court in determining the children's best interests also BE BArred FROM the judge's CONSIDERATION IF ANY MENTION IS MADE IN THE REPORT PERTAINING TO THE POSSIBILITY THAT ONE PARENT has been SEEKING TO ALIENATE THE CHILDREN FROM THE OTHER PARENT --EVEN IF THE REPORT CONTAINs SIGNIFICANT ADMISSIBLE EVIDENCE THAT COULD HELP THE COURT DETERMINE THE BEST INTERESTS OF THE CHILDren? 4)in the event THE COMMITTEE POTENTIALLY CONCLUDEs THERE IS as YET inSUFFICIENT EVIDENCE SUPPORTING the PARTICULAR EVIDENTIARY BAN PROPOSED HERE, MIGHT THE FIRST SENTENCE OF THE BILL'S LEGISLATIVE INTENT SECTIONWISELY BE CODIFIED AS A HELPFUL NEW ADMONITION IN THE FAMILY CODE? FISCAL EFFECT :As currently in print,this bill is keyed fiscal. AB 612 Page 2 SYNOPSIS This bill, sponsored by the Center for Judicial Excellence in Marin County, seeks to prohibit certain evidence that currently may be considered by courts and evaluators when trying to determine what custody arrangement appears to be in the best interests of the children. Specifically, this measure seeks to prohibit, apparently for the first time anywhere in the country, a family law judge from considering any evidence of parental alienation or of so-called "Parental Alienation Syndrome," out of deep and sincere concern, and apparently anecdotal evidence, that some family law courts are dangerously misusing their discretion and making inappropriate custody decisions on the bases of these so-called "syndromes" that are not supported by a consensus in the scientific community.The bill does not define what such syndromes are and there appear to be no published state cases relying on such a "syndrome" in making a judicial determination about the best interests of the children. It is unclear in the bill just how broadly the ban on any such "alienation" evidence would be, and, whether any and all evidence in a custody case that might demonstrate that one parent is seeking to alienate the children from the other parent would be barred from the judge's consideration when determining what custody arrangement would appear to be in the children's best interests. The bill further provides that all other relevant evidence contained in a professional evaluator's child custody report that might assist the court in determining the children's best interests also shall be barred from the judge's consideration if any mention is made in the report pertaining to the possibility that one parent has been seeking to alienate the children from the other parent -- even presumably if the report contains significant admissible evidence that could help the court determine the best interests of the children. The bill is supported by various groups who contend it is necessary to protect children who may, as a result of a court's reliance on reports containing "Parental Alienation Syndrome," be removed from a protective parent and placed in the custody of an abusive parent.The bill is opposed bythe Judicial Council,the California Judges Association, the Family Law Bar, and the psychological community who all argue that the bill, as drafted, could inadvertently actually harm children by keeping the court from timely considering relevant information that could force the courts to make decisions that are not in the AB 612 Page 3 best interests of the children.In the event the Committee potentially concludes there may be as yet insufficient evidence supporting the proposed ban on the use of judicial discretion in this area, the analysis suggests that the first sentence of the bill's legislative intent section -- urging family courts to strive to protect the safety and best interests of children in custody matters by ensuring that allegations of physical and sexual abuse are investigated appropriately or that referrals are made to the child welfare services agency - might be found by the Committee as a potentially helpful admonition in the Family Code. SUMMARY : Seeks to prohibit family court judges from considering certain evidence that currently may be considered by courts and evaluators when trying to determine what custody arrangement appears to be in the best interests of the children. Specifically, this bill : 1)States legislative intent that courts strive to protect the safety and best interests of children in custody matters by ensuring that allegations of physical and sexual abuse are investigated appropriately or referrals are made to the child welfare services agency. 2)Further finds and declares that Parental Alienation Syndrome and other theories that suggest that abuse allegations of children who express significant hostility to the allegedly abusive parent are false and are the result of a campaign of denigration by the other parent are not credible, and their use in child custody evaluations has been harmful to children. 3)Seeks to add a new section to the family code providing that a child's expression of significant hostility toward a parent cannot be used as evidence that an accusation of child abuse or neglect against that parent is false. 4)Provides that on or after January 1, 2010, any child custody evaluation report filed in a child custody proceeding that includes "Parent Alienation Syndrome or Parent Alienation" shall be deemed inadmissible in that custody proceeding. 5)Provides that, on or after January 1, 2010, the provisions of this section shall be included in all trainings required AB 612 Page 4 pursuant to Section 3110.5. EXISTING LAW : 1)States that the health, safety and welfare of children is the court's primary concern when determining the best interests of children for child custody and visitation orders. (Family Code Section 3020. Unless otherwise stated, all further statutory references are to that code.) 2)Provides that, in determining the best interests of a child in a child custody and visitation proceedings, the court shall consider, among any other relevant factors, the health, safety and welfare of the child, and any history of domestic abuse or substance abuse by either parent. (Section 3011.) 3)Permits the court, in a contested child custody or visitation proceeding where the court determines it is in the best interests of the child, to appoint a child custody evaluator to conduct a child custody evaluation. Provides that the evaluation may be considered by the court. Provides that the report may be received in evidence on stipulation of all interested parties and is competent evidence on all matters contained in the report. (Section 3111.) 4)Provides that no court may deny or limit custody or visitation to a parent solely because that parent (a) lawfully reported sexual abuse of the child; (b) otherwise acted lawfully, based on a reasonable belief, to determine if the child was a victim of sexual abuse; or (c) sought mental health treatment for the child based on suspected sexual abuse. (Section 3027.5(a).) 5)Allows a court to order supervised visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent's contact with the child, makes a report of child abuse which the parent knew was false at the time it was made. Before imposing any such limitation on visitation, the court must have determined that the limitation is necessary to protect the health, safety and welfare of the child and the court has considered the state's policy of assuring that children have frequent and continuing contact with both parents. (Section 3027.5(b).) 6)Establishes qualifications required of child custody AB 612 Page 5 evaluators. Sets forth initial and continuing domestic violence training for child custody mediators, investigators and evaluators. Court rules specify qualifications for evaluators and specify the scope of the evaluation. (Sections 1816, 3110.5, 3117; Rules of Court 5.220, 5.225.) 7)Where the court determines there is a serious allegation of child sexual abuse, as defined, requires the child custody evaluation to be conducted under specified rules. (Section 3118.) 8)Provides that expert testimony is admissible if it is personally known or made known to the expert and is of a type that reasonably may be relied upon by an expert in forming an opinion. (Evidence Code Section 801.) COMMENTS : This bill, sponsored by the Center for Judicial Excellence in Marin County,seeks to ban certain evidence that potentially may be considered by courts and evaluators in child custody matters. In particular, this bill seeks to exclude any evidence that is based either on a so-called "Parental Alienation Syndrome" or that seeks to demonstrate facts showing that one parent is seeking to alienate the children against the other parent. Such a ban would apparently be the first anywhere in the country. The sponsors contend this approach is needed out of deep and sincere concern, and apparently anecdotal evidence, that some family law courts are dangerously misusing their discretion and making inappropriate custody decisions on the basis of these so-called "syndromes" that are not supported by a consensus in the scientific community. In support of the bill's suggested approach, the author states the bill is necessary because today "court appointed child evaluators are free to use any theory in making their report regardless of acceptance or reliability. Reports are then used to aid the court in making determinations of custody and visitation. As a result, some custody determinations or visitation rights are ordered based upon fringe theories that are not recognized by the relevant psychological, medical, and psychiatric communities. The use of theories that are not 'generally accepted' by the relevant scientific community is contrary to California evidence law." So-Called "Parental Alienation Syndrome," and Allegations of Alienation Generally: As noted above, this measure seeks to AB 612 Page 6 put the California Legislature on record that "Parental Alienation Syndrome and other theories that suggest that abuse allegations of children who express significant hostility to the allegedly abusive parent are false," and "their use in child custody evaluations has been harmful to children." Based on this concern, the bill seeks to add a new section to the Family Code providing that a child's expression of significant hostility toward a parent cannot be used as evidence that an accusation of child abuse or neglect against that parent is false. The bill further provides that beginning next January, any child custody evaluation report filed in a child custody proceeding that in anyway mentions "Parent Alienation Syndrome" or contains facts that purport to demonstrate that one parent is seeking to alienate the children from the other parent shall be barred from consideration by the family court judge when determining what custody arrangement would appear to be in the best interests of the children. In this regard, it is always worth recalling that divorce is extremely difficult for parents and children alike. According to an article provided by the author in support of his bill: Termination of a spousal relationship without attendant damage to the parental relationship is a difficult task. When one parent refuses to allow the other parent to be involved in the child's life, conflict ensues and a return to court becomes inevitable. Where one parent sabotages (intentionally or unintentionally) the other parent's role in the child's life or a child becomes estranged from a parent the term "parental alienation" is used. (Jerome Poliacoff, Cynthia Greene, and Laura Smith, "Parental Alienation Syndrome: Frye v. Gardner in the Family Courts (1999).) Parental Alienation Syndrome, as the syndrome was apparently first coined by Richard Gardner in the 1980's, reportedly goes farther than simple alienation. At the extreme end, Gardner's theory - which it is critical to note here has not been an accepted theory as of yet in the scientific community -- holds that a child's allegation of child sexual abuse by one parent is the product of the other parent's brainwashing of the child, as opposed to actual abuse. Under this one commentator's theory, a child's hatred or fear of his or her parent is not AB 612 Page 7 proof in and of itself of the veracity of the alleged abuse, but rather proof that the alleged abuse did not occur. In response to the serious concerns about this theory, Committee counsel undertook research to try to determine how prevelant in California case law the theory has apparently been relied upon in child custody determinations. Based on the Committee's research, there do not appear to be any published state cases relying on such a "syndrome" in making a judicial determination about the best interests of the children. Some Hypothetical Examples of How This Measure Might Affect Child Custody Determinations : Several examples may help elucidate the key issues surrounding this bill. A child at the center of a bitter custody dispute may side with one parent and want to spend time with that parent and not the other. This strong desire to avoid one parent may, a family court judge might conclude, be enhanced by the other parent's bitter denouncements of that parent, or may be simply be how the child feels regardless of that parent's alleged efforts to alienate the child against the other parent. Alternatively, the child may not want to spend time with one parent because that parent makes the child do homework and chores, and the other parent does not. At other end of this wide spectrum of possible scenarios unique to each family, a child may have significant hostility toward, and not want to spend any time with, another parent because that parent has tragically sexually abused the child. This bill appears to create a hard and fast rule that an evaluator and a court may never determine that a child's refusal to visit with the other parent can be caused by the efforts of the parent to alienate the child's from the other parent. However, such a bright line rule is in sharp contrast to the long-standing foundational premise contained in California's and most other states' Family Codes providing broad and unfettered discretion to the trier of fact which has been felt to be critical for making child custody decisions that are in the best interests of children. Family law judicial officers and counsel have long testified in the Legislature that determining custody arrangements that appear to be in the best interests of children is one of the toughest jobs a court officer and an evaluator can ever make. These decisions they state are extremely fact intensive AB 612 Page 8 inquiries - each family situation and each child is unique, and every judicial inquiry must consider those unique situations, and have as much potential evidence before the court as the court deems admissible and illuminating. However they note, judicial discretion in this area is not unfettered. Courts are limited by the rules of evidence. (See Evidence Code Section 801.) However, beyond that, opponents of this measure suggest that any broad restriction on the information the court can consider could well unintentionally compromise the court's ability to make determinations that are in children's best interests, and could inadvertently compromise child safety. Family law statutes, opponents note, do provide some limits on the court's authority in the form of various presumptions, but judges still have discretion to rebut those presumptions if they are not in the best interests of the child. (See Family Code 3044.) In opposition to the hard and fast rule this bill seeks to create, the California Psychological Association writes that the bill ignores the "significant scientific and agreed-upon knowledge base of the last 30 years on children who are alienated. The proposed amendments to this scientifically inaccurate measure assume the truth of any accusation of abuse. . . ." The Family Law Section of the State Bar, also in opposition, notes that while Parental Alienation Syndrome in not a viable theory, parents may still influence a child's feelings about the other parent: More pernicious attempts could be made by parent who cancels the other parent's visit without telling the child that the visit has been cancelled, creating a "let down" for the child when that parent does not "show up" for the visit. Threats could also be made against the child for wanting to have visitation with the other parent - "Fine, if you want to see [your other parent] tonight, then you are grounded for the rest of the week." Guilt can also be used to influence a child to avoid visitation - "I'm not feeling well and I wish you would stay here with me, but if you have to see [your other parent] I will understand." Rewards can also be used - "Sure, you can see [your other parent] today, but I thought we would go play laser tag with your friends today." While arguing against reliance upon the "discredited" Parental AB 612 Page 9 Alienation Syndrome, a study by the National Council of Juvenile and Family Court Judges explains the importance of courts being permitted to use their discretion to distinguish when children are being manipulated and when they are victims of abuse: The discredited "diagnosis" of "PAS" ? quite apart from the scientific invalidity, inappropriately asks the court to assume that children's behaviors and attitudes towards the parent who claims to be "alienated" have no grounding in reality. It also diverts attention from the behaviors of the abusive parent, who may have directly influenced the children's responses by acting in violent, disrespectful, intimidating, humiliating and/or discrediting ways toward the child themselves, or the children's other parent. The task for the court is to distinguish between situations in which children are critical of one parent because they have been inappropriately manipulated by the other (taking care not to rely solely on subtle indications), and situations in which children have their own legitimate grounds for criticism or fear of a parent, which will likely be the case when that parent has perpetrated domestic violence. (National Council of Juvenile and Family Court Judges, Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judges Guide 24 (2004, Revised 2006) (emphasis added ) .) This bill goes well beyond excluding a diagnosis of Parental Alienation Syndrome in a child abuse case, and provides that something as simple as a child not wanting to visit a parent cannot, potentially as a matter of law, be caused by the other parent. It may well be reasonable for an evaluator and a court to find, in a difficult custody case, which many of course are, that a child does not want to visit the other parent based, in part, on the high level of animosity between the parents, but this bill appears to risk preventing a court, regardless of the facts of the individual case, from making such a determination and thereby acting in what the court believes to be the best interests of the child. AB 612 Page 10 Other States: As noted above, Committee counsel could find no state in the nation that limits use of parental alienation or parental alienation syndrome by statute. On the other hand, one state - Nevada - trains child custody mediators on parental alienation (Nevada Court Rules 5.70) and another state - North Carolina - allows family court fees to be used to support supervised visitation and exchange centers that offer services on, among other things, domestic violence, mental illness and parental alienation (North Carolina Gen. Stat. Section 7A-314.1). The Bill Requires That If A Child Custody Evaluation Or Mediator's Report Contains Any Reference To "Parental Alienation Syndrome" Or Apparently Any Evidence Of "Parental Alienation, The Entire Report Is Inadmissible . As noted above, opponents worry that the new admissibility bar contained in the bill could inadvertently cause significant harm to a child by excluding an entire report that, while including an inadmissible reference to "Parental Alienation Syndrome" nonetheless contains extremely helpful information in the remainder of the report. In opposition to this provision, the Judicial Council wrote the Committee that: This sweeping provision is especially onerous for the litigants and their children, as these evaluations typically takes months of work to complete, and cost the parties thousands and even tens of thousands of dollars. While it is certainly appropriate to require the court to refrain from considering or admitting into evidence any information in an evaluation that does not meet the existing admissibility standard for expert opinion, it is unnecessary and harmful to the interests of the child and the family to require the court to exclude the entire evaluation report. These reports are extensive, and may include voluminous factual information that would assist the court in making its custody determination. The Family Law Section of the State Bar echoes this concern that was expressed to the Committee by the Judicial Council: In most counties, a Child Custody Evaluation takes approximately ninety days to nine months to complete (sometimes more depending on the facts of the case). AB 612 Page 11 By requiring a report, assessment, evaluation and the investigation to be inadmissible evidence if non-scientific theories were considered, this would likely require a new evaluation to be done if this provision is violated, thereby extending the time for further completion of the new evaluation. These proposed changes will likely lead to more litigation over all of these issues stated above, as well as whether or not a non-scientific theory was considered within make the recommendations of the report, thereby creating more costs for litigants, taking more time to resolve custody disputes, and ultimately leaving children in limbo for a longer periods of time. Moreover, if the report reveals that the child is in an unsafe custodial arrangement, the court under this bill wouldnot be able to consider that information and issue an order to better protect the child, but instead would likely start the whole evaluation or mediation all over again -- thus potentially leaving the child in what could regrettably be a dangerous situation. Possible Approach The Author May Wish to Consider : In the event the Committee potentially concludes there may be as yet insufficient evidence supporting the proposed ban on the use of judicial discretion in this area, the Committee may nonetheless conclude that the first sentence of the bill's legislative intent section would be a potentially helpful admonition to codify in the Family Code. This helpfulstatement of legislative intent reads as follows: It is the intent of the Legislature that courts strive to protect the safety and best interests of children in custody matters by ensuring that allegations of physical and sexual abuse are investigated appropriately or referrals are made to the child welfare services agency. The Committee may thus wish to discuss with the author his openness to codifying this helpful statement of legislative intent in the Family Code. ARGUMENTS IN SUPPORT : In support of the bill, proponents cite research currently being undertaken by a California State University professor that "shows that parents who request AB 612 Page 12 protection from family courts for their children from incest or physical abuse by the child's other parent often lose custody of those children to the accused parent." They also cite to an additional report that estimates that courts in the Unites States often mistakenly place children in the custody of abusers. The National Safe Child Coalition writes: "Sadly, in far too many cases, children end up in the custody of perpetrators. Indeed, alienation claims have become ubiquitous in custody cases where domestic violence or child abuse is alleged as grounds to reject mothers' requests to limit parental access to their children. . . . Perpetrators must be held responsible for their terror, harm, and lethal violence; concomitantly, court and representational practices and intervention should not be unwitting allies or silent partners of subjugation, bias, and burden. Battered women seeking safety and justice for themselves and their children should not become victims themselves of the family court system due to the use of nonscientific theories as a basis for child custody evaluations and decisions." The Courageous Kids Network write that their members "were harmed by having one of our parents accused of alienating is from the other parent when we were children. We were placed in the custody of our violent and sexually abusive parents because judges in family court believed we were not telling the truth about the abuse. . . . We were not making it up. We had bruises, nightmare, physical illnesses, post-traumatic stress symptoms, emotional issues, and our own testimony to show that our fathers were hurting us badly." ARGUMENTS IN OPPOSITION : The California Psychological Association opposes the bill, writing that "this legislation attempts to make illegal the process of clinical inference, which is basic to the practice of psychology. AB 612 . . . is vague, contains terms that are undefined or unworkable, and will create confusion among the professionals who perform child custody evaluations. . . . AB 612 does not serve in the best interest of the public or the best interests of children caught up in the family court system. It creates standards that are not based on science or practice and will essentially prohibit psychologists from engaging in good, evenhanded, thorough evaluations." AB 612 Page 13 The California Judges Association opposes the bill because it would "take away judicial discretion and replace it with an unclear and inflexible standard for determining whether to admit evidence in a child custody hearing. The bill would hinder the courts, confuse and delay child custody evaluators, and burden children and their families." Likewise, the Family Law Section of the State Bar opposes the bill because "although the stated purpose of AB 612 is to protect children, the bill would actually place children at risk by prohibiting courts and child custody evaluators from considering evidence relevant to the best interests of the child." Previous Legislation : AB 612 (Ruskin), 2007, as substantially amended by this Ccommittee, would have limited when, in connection with a child custody evaluation, the court can order the psychological testing of a parent and who can perform such testing. The bill also excluded nonscientific labels and diagnoses that are not consistent with standards generally accepted by the medical, psychiatric and psychological communities. The bill passed out of the Assembly, but did not pass off the Senate Floor. REGISTERED SUPPORT / OPPOSITION : Support Center for Judicial Excellence (sponsor) Calegislation California Protective Parents Association Child Abuse Solutions Children's Civil Rights Union Courageous Kids Network Helen Vine Detox Center Marin City Golden Gate Village Resident Council Mothers in Crisis Coalition National Safe Child Coalition Women Helping All People Opposition American Academy of Matrimonial Lawyers, Northern California Chapter Association of Certified Family Law Specialists Association of Family and Conciliation Courts, California California Judges Association California Psychological Association Family Law Section of the Los Angeles County Bar Association Family Law Section of the Santa Monica Bar Association Family Law Section of the State BarAnalysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0601-0650/ab_612_cfa_20090427_122936_asm_comm.html
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