Bill Text: CA SB1206 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Child abduction prevention.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2012-09-07 - Chaptered by Secretary of State. Chapter 276, Statutes of 2012. [SB1206 Detail]

Download: California-2011-SB1206-Amended.html

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BILL NUMBER: SB 1206	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 1, 2012
	AMENDED IN SENATE  APRIL 12, 2012

INTRODUCED BY   Senator Walters

                        FEBRUARY 22, 2012

   An act to amend Sections 2040  , 3048,  and
3134.5 of the Family Code, relating to child abduction prevention.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1206, as amended, Walters. Child abduction prevention.
   (1) Existing law requires, upon the commencement of proceedings
for dissolution or nullity of marriage or legal separation of the
parties, that the summons contain a temporary restraining order
restraining both parties from, among other things, removing the minor
child or children of the parties, if any, from the state without the
prior written consent of the other party or an order of the court.
   This bill would, additionally, provide that the temporary
restraining order restrain the parties from applying for a new or
replacement passport for the minor child or children of the parties
without the prior written consent of the other party or an order of
the court. 
   (2) Existing law requires the court, in cases in which the court
becomes aware of facts that may indicate a risk of abduction of a
child, to consider specified factors in determining the risk of
abduction and whether measures are needed to prevent that abduction.
These preventative measures may include requiring the surrender of
passports and other travel documents and prohibiting a parent from
applying for a new or replacement passport for the child. 

   If the court orders a parent to surrender passports and other
travel documents as part of the preventative measures described
above, and if the parent is a foreign national, this bill would
require the court to request that the name of the parent and the
child or children be placed in the Prevent Departure Program of the
United States Department of Homeland Security by contacting the
Office of Children's Issues at the United States Department of State.
If the court orders a parent to surrender passports and other travel
documents, and prohibits the parent from applying for a new or
replacement passport, this bill would also require the court to enter
the name of the child or children in the Children's Passport
Issuance Alert Program of the United States Department of State by
contacting the Office of Children's Issues at the United States
Department of State and submitting the appropriate form with a court
order showing that the court has jurisdiction over the matter.
 
   (3) 
    (2)  Existing law authorizes the court, upon request of
the district attorney, to issue a protective custody warrant to
secure the recovery of an unlawfully detained or concealed child. The
protective custody warrant for the child is required to contain an
order that the arresting agency shall place the child in protective
custody, or return the child as directed by the court.
   This bill would authorize the court to also include within the
protective custody warrant for the child an order to freeze the
California assets  , as defined,  of the party alleged to be
in possession of the child.
   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.  This act shall be known and may be cited as Keisuke's
Law.
  SEC. 2.  Section 2040 of the Family Code is amended to read:
   2040.  (a) In addition to the contents required by Section 412.20
of the Code of Civil Procedure, the summons shall contain a temporary
restraining order:
   (1) Restraining both parties from removing the minor child or
children of the parties, if any, from the state, or from applying for
a new or replacement passport for the minor child or children,
without the prior written consent of the other party or an order of
the court.
   (2) Restraining both parties from transferring, encumbering,
hypothecating, concealing, or in any way disposing of any property,
real or personal, whether community, quasi-community, or separate,
without the written consent of the other party or an order of the
court, except in the usual course of business or for the necessities
of life, and requiring each party to notify the other party of any
proposed extraordinary expenditures at least five business days
before incurring those expenditures and to account to the court for
all extraordinary expenditures made after service of the summons on
that party.
   Notwithstanding the foregoing, nothing in the restraining order
shall preclude a party from using community property, quasi-community
property, or the party's own separate property to pay reasonable
attorney's fees and costs in order to retain legal counsel in the
proceeding. A party who uses community property or quasi-community
property to pay his or her attorney's retainer for fees and costs
under this provision shall account to the community for the use of
the property. A party who uses other property that is subsequently
determined to be the separate property of the other party to pay his
or her attorney's retainer for fees and costs under this provision
shall account to the other party for the use of the property.
   (3) Restraining both parties from cashing, borrowing against,
canceling, transferring, disposing of, or changing the beneficiaries
of any insurance or other coverage, including life, health,
automobile, and disability, held for the benefit of the parties and
their child or children for whom support may be ordered.
   (4) Restraining both parties from creating a nonprobate transfer
or modifying a nonprobate transfer in a manner that affects the
disposition of property subject to the transfer, without the written
consent of the other party or an order of the court.
   (b) Nothing in this section restrains any of the following:
   (1) Creation, modification, or revocation of a will.
   (2) Revocation of a nonprobate transfer, including a revocable
trust, pursuant to the instrument, provided that notice of the change
is filed and served on the other party before the change takes
effect.
   (3) Elimination of a right of survivorship to property, provided
that notice of the change is filed and served on the other party
before the change takes effect.
   (4) Creation of an unfunded revocable or irrevocable trust.
   (5) Execution and filing of a disclaimer pursuant to Part 8
(commencing with Section 260) of Division 2 of the Probate Code.
   (c) In all actions filed on and after January 1, 1995, the summons
shall contain the following notice:

   "WARNING: California law provides that, for purposes of division
of property upon dissolution of marriage or legal separation,
property acquired by the parties during marriage in joint form is
presumed to be community property. If either party to this action
should die before the jointly held community property is divided, the
language of how title is held in the deed (i.e., joint tenancy,
tenants in common, or community property) will be controlling and not
the community property presumption. You should consult your attorney
if you want the community property presumption to be written into
the recorded title to the property."

   (d) For the purposes of this section:
   (1) "Nonprobate transfer" means an instrument, other than a will,
that makes a transfer of property on death, including a revocable
trust, pay on death account in a financial institution, Totten trust,
transfer on death registration of personal property, or other
instrument of a type described in Section 5000 of the Probate Code.
   (2) "Nonprobate transfer" does not include a provision for the
transfer of property on death in an insurance policy or other
coverage held for the benefit of the parties and their child or
children for whom support may be ordered, to the extent that the
provision is subject to paragraph (3) of subdivision (a).
   (e) The restraining order included in the summons shall include
descriptions of the notices required by paragraphs (2) and (3) of
subdivision (b). 
  SEC. 3.    Section 3048 of the Family Code is
amended to read:
   3048.  (a) Notwithstanding any other law, in any proceeding to
determine child custody or visitation with a child, every custody or
visitation order shall contain all of the following:
   (1) The basis for the court's exercise of jurisdiction.
   (2) The manner in which notice and opportunity to be heard were
given.
   (3) A clear description of the custody and visitation rights of
each party.
   (4) A provision stating that a violation of the order may subject
the party in violation to civil or criminal penalties, or both.
   (5) Identification of the country of habitual residence of the
child or children.
   (b) (1) In cases in which the court becomes aware of facts that
may indicate that there is a risk of abduction of a child, the court
shall, either on its own motion or at the request of a party,
determine whether measures are needed to prevent the abduction of the
child by one parent. To make that determination, the court shall
consider the risk of abduction of the child, obstacles to location,
recovery, and return if the child is abducted, and potential harm to
the child if he or she is abducted. To determine whether there is a
risk of abduction, the court shall consider the following factors:
   (A) Whether a party has previously taken, enticed away, kept,
withheld, or concealed a child in violation of the right of custody
or of visitation of a person.
   (B) Whether a party has previously threatened to take, entice
away, keep, withhold, or conceal a child in violation of the right of
custody or of visitation of a person.
   (C) Whether a party lacks strong ties to this state.
   (D) Whether a party has strong familial, emotional, or cultural
ties to another state or country, including foreign citizenship. This
factor shall be considered only if evidence exists in support of
another factor specified in this section.
   (E) Whether a party has no financial reason to stay in this state,
including whether the party is unemployed, is able to work anywhere,
or is financially independent.
   (F) Whether a party has engaged in planning activities that would
facilitate the removal of a child from the state, including quitting
a job, selling his or her primary residence, terminating a lease,
closing a bank account, liquidating other assets, hiding or
destroying documents, applying for a passport, applying to obtain a
birth certificate or school or medical records, or purchasing
airplane or other travel tickets, with consideration given to whether
a party is carrying out a safety plan to flee from domestic
violence.
   (G) Whether a party has a history of a lack of parental
cooperation or child abuse, or there is substantiated evidence that a
party has perpetrated domestic violence.
   (H) Whether a party has a criminal record.
   (2) If the court makes a finding that there is a need for
preventative measures after considering the factors listed in
paragraph (1), the court shall consider taking one or more of the
following measures to prevent the abduction of the child:
   (A) Ordering supervised visitation.
   (B) Requiring a parent to post a bond in an amount sufficient to
serve as a financial deterrent to abduction, the proceeds of which
may be used to offset the cost of recovery of the child in the event
there is an abduction.
   (C) Restricting the right of the custodial or noncustodial parent
to remove the child from the county, the state, or the country.
   (D) Restricting the right of the custodial parent to relocate with
the child, unless the custodial parent provides advance notice to,
and obtains the written agreement of, the noncustodial parent, or
obtains the approval of the court, before relocating with the child.
   (E) Requiring the surrender of passports and other travel
documents. If a parent is ordered to surrender passports and other
travel documents pursuant to this subparagraph, and if the parent is
a foreign national, the court shall request that the names of the
parent and the child or children be placed in the Prevent Departure
Program of the United States Department of Homeland Security by
contacting the Office of Children's Issues at the United States
Department of State.
   (F) Prohibiting a parent from applying for a new or replacement
passport for the child. If a parent is ordered to surrender passports
and other travel documents pursuant to subparagraph (E) and is
prohibited from applying for a new or replacement passport pursuant
to this subparagraph, the court shall enter the name of the child or
children in the Children's Passport Issuance Alert Program of the
United States Department of State by contacting the Office of
Children's Issues at the United States Department of State and
submitting the appropriate form with a court order showing that the
court has jurisdiction over the matter.
   (G) Requiring a parent to notify a relevant foreign consulate or
embassy of passport restrictions and to provide the court with proof
of that notification.
   (H) Requiring a party to register a California order in another
state as a prerequisite to allowing a child to travel to that state
for visits, or to obtain an order from another country containing
terms identical to the custody and visitation order issued in the
United States (recognizing that these orders may be modified or
enforced pursuant to the laws of the other country), as a
prerequisite to allowing a child to travel to that country for
visits.
   (I) Obtaining assurances that a party will return from foreign
visits by requiring the traveling parent to provide the court or the
other parent or guardian with any of the following:
   (i) The travel itinerary of the child.
   (ii) Copies of round trip airline tickets.
   (iii) A list of addresses and telephone numbers where the child
can be reached at all times.
   (iv) An open airline ticket for the left-behind parent in case the
child is not returned.
   (J) Including provisions in the custody order to facilitate use of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)) and the Hague Convention on the Civil
Aspects of International Child Abduction (implemented pursuant to 42
U.S.C. Sec. 11601 et seq.), such as identifying California as the
home state of the child or otherwise defining the basis for the
California court's exercise of jurisdiction under Part 3 (commencing
with Section 3400), identifying the United States as the country of
habitual residence of the child pursuant to the Hague Convention,
defining custody rights pursuant to the Hague Convention, obtaining
the express agreement of the parents that the United States is the
country of habitual residence of the child, or that California or the
United States is the most appropriate forum for addressing custody
and visitation orders.
   (K) Authorizing the assistance of law enforcement.
   (3) If the court imposes any or all of the conditions listed in
paragraph (2), those conditions shall be specifically noted on the
minute order of the court proceedings.
   (4) If the court determines there is a risk of abduction that is
sufficient to warrant the application of one or more of the
prevention measures authorized by this section, the court shall
inform the parties of the telephone number and address of the Child
Abduction Unit in the office of the district attorney in the county
where the custody or visitation order is being entered.
   (c) The Judicial Council shall make the changes to its child
custody order forms that are necessary for the implementation of
subdivision (b). This subdivision shall become operative on July 1,
2003.
   (d) Nothing in this section affects the applicability of Section
278.7 of the Penal Code. 
   SEC. 4.   SEC. 3.   Section 3134.5 of
the Family Code is amended to read:
   3134.5.  (a) Upon request of the district attorney, the court may
issue a protective custody warrant to secure the recovery of an
unlawfully detained or concealed child. The request by the district
attorney shall include a written declaration under penalty of perjury
that a warrant for the child is necessary in order for the district
attorney to perform the duties described in Sections 3130 and 3131.
The protective custody warrant for the child shall contain an order
that the arresting agency shall place the child in protective
custody, or return the child as directed by the court. The protective
custody warrant for the child may also contain an order to freeze
the California assets of the party alleged to be in possession of the
child. The protective custody warrant may be served in any county in
the same manner as a warrant of arrest and may be served at any time
of the day or night.  For purposes of this subdivision, "assets"
means funds contained in a bank account held in California. 
   (b) Upon a declaration of the district attorney that the child has
been recovered or that the warrant is otherwise no longer required,
the court may dismiss the warrant without further court proceedings.