Bill Text: CA SB1265 | 2021-2022 | Regular Session | Amended

California Senate Bill 1265 (Prior Session Legislation)

Bill Title: Domestic violence: child visitation.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2022-06-13 - June 21 hearing postponed by committee. [SB1265 Detail]

Download: California-2021-SB1265-Amended.html

Amended IN Senate May 19, 2022

Amended IN Senate April 28, 2022

Amended IN Senate April 18, 2022

Amended IN Senate March 16, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 1265

Introduced by Senator Rubio

February 17, 2022

An act to amend Section 6306 of the Family Code, relating to protective orders.

LEGISLATIVE COUNSEL'S DIGEST

SB 1265, as amended, Rubio. Domestic violence: child visitation.

Existing law requires a court, when determining temporary custody or visitation orders when a protective order is sought, to ensure that a search has been conducted to determine, and requires a court to consider, if the subject of the order has been convicted of a serious or violent felony, a misdemeanor conviction involving domestic violence, weapons, or other violence, has an outstanding warrant, is currently on parole or probation, or has a prior restraining order or a violation of a restraining order.

This bill would require a court, upon receipt of an ex parte request for an order to modify a custody or visitation order from specified parties to a restraining order, to hear the request, as specified, if a person restrained by a protective order who has authorize a person who is protected by a restraining order and shares court-authorized in-person custody or visitation ~~with~~ of children with the restrained person to file an ex parte request to modify the custody or visitation order stating that the restrained person has been arrested for or charged with a crime involving assaultive conduct, or use of a weapon upon another person, ~~in the 45-day period prior to the court’s receipt of the request,~~ within the preceding 45-day period, and the filing party fears the restrained party will harm the children during a court-ordered visitation or custody or that the restrained party has threatened to harm or kill the children. The bill would require the court, upon the receipt of the request for order, to hear the ex parte request, as specified. The bill would authorize the court to suspend the restrained person’s in-person contact with the children until it holds a noticed hearing on the request, which would be required to be conducted within 15 days. The bill would require the court to serve a copy of the order and the notice of the hearing to the party whose custody or visitation has been suspended. The bill would require a court to provide the results of the above-described search to the parties prior to the hearing, and would require the search to be conducted of all records and databases readily available and reasonably accessible. The bill would authorize the court, at the noticed hearing, to make any modifications to the original custody or visitation order or the order issued at the ex parte proceeding that the court determines are in the best interest of the child or children.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

Section 6306 of the Family Code is amended to read:

6306.

(a) Prior to a hearing on the issuance or denial of an order under this part, the court shall ensure that a search is or has been conducted to determine if the subject of the proposed order has a prior criminal conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; has a conviction involving domestic violence, weapons, or other violence; has an outstanding warrant; is currently on parole or probation; has a registered firearm; or has a prior restraining order or a violation of a prior restraining order. The search shall be conducted of all records and databases readily available and reasonably accessible to the court, including, but not limited to, the following:

(1) The California Sex and Arson Registry (CSAR).

(2) The Supervised Release File.

(3) State summary criminal history information maintained by the Department of Justice pursuant to Section 11105 of the Penal Code.

(4) The Federal Bureau of Investigation’s nationwide database.

(5) Locally maintained criminal history records or databases.

However, a record or database need not be searched if the information available in that record or database can be obtained as a result of a search conducted in another record or database.

(b) (1) Prior to deciding whether to issue an order under this part or when determining appropriate temporary custody and visitation orders, the court shall consider the following information obtained pursuant to a search conducted under subdivision (a): a conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; a conviction involving domestic violence, weapons, or other violence; an outstanding warrant; parole or probation status; a prior restraining order; and a violation of a prior restraining order.

(2) (A) ~~If a person who is restrained pursuant to a Domestic Violence Protection Act order or other protective order has~~ A person who is protected by a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 and shares court-authorized in-person custody or visitation with children and the court has received an ex parte request for an order to modify the custody or visitation order from a party to the restraining order, or a minor’s counsel if minor’s counsel has been appointed, stating that of children with the restrained person may file an ex parte request to modify the custody or visitation order stating that (i) the restrained person has been arrested for or charged with a crime involving assaultive conduct, or use of a weapon upon another person, within the ~~45-day period prior to the court’s receipt of the request to modify the custody or visitation order, and~~ preceding 45-day period, and (ii) the filing party fears the restrained party will harm the children during a court-ordered visitation or custody or that the restrained party has threatened to harm or kill the ~~children,~~ children. The person seeking the order is automatically exempt from the requirement to give advance notice to the opposing party of the ex parte hearing as specified in paragraph (2) of subdivision (e) of Rule 5.151 of the California Rules of Court.

(B) Upon receipt of a request for order in subparagraph (A), the court shall hear the ex parte request on the same day it was filed, if the request was filed before 10 a.m., or the next day if it was filed after 10 a.m. The person seeking the order shall be permitted to appear at the ex parte hearing remotely if they so choose. At the ex parte hearing, the court may suspend the restrained person’s in-person contact with the children until it holds a noticed hearing on the request to modify the custody or visitation order, which shall be conducted within 15 days. The court shall serve a copy of the order and the notice of the hearing to the party whose custody or visitation has been suspended. The party may file a response prior to the noticed hearing. Filing an ex parte request for an order under this subparagraph automatically exempts the applicant from the requirement to give advance notice to the opposing party as specified in paragraph (2) of subdivision (e) of Rule 5.151 of the California Rules of Court. The applicant is also exempt from any fee for any filings related to a petition filed pursuant to this subparagraph.

(C) The restrained party may file a response prior to the noticed hearing. At the noticed hearing, the court may make any modifications to the original custody or visitation order or the order issued at the ex parte proceeding that the court determines are in the best interest of the child or children.
(D) The person seeking the order shall not be required to pay any filing or related fees for any motions or other documents filed pursuant to subparagraph (A), (B), or (C).
~~(B)~~

(E) The court shall ensure a criminal background search is conducted prior to the noticed hearing ~~described in subparagraph (A)~~ and provide the results of the search, to the extent permitted by existing law, to the parties prior to the noticed hearing.

~~(C)~~

(F) The search shall be conducted of all records and databases readily available and reasonably accessible to the court. However, a record or database need not be searched if the information available in that record or database can be obtained as a result of a search conducted in another record or database.

~~(D)~~

(G) The court shall exercise due diligence regarding all information relevant to child safety knowing that the database information may be incomplete.

~~(E)~~

(H) If the restrained person’s in-person contact is suspended following the ex parte ~~hearing described in subparagraph (A),~~ hearing and the court reinstates in-person custody or visitation following the noticed hearing, the court shall state its reasons in writing or on the record.

(3) Information obtained as a result of a search that does not either pertain to convictions or other information specified in subdivision (a) or paragraph (1) of subdivision (b) if the search is conducted pursuant to subdivision (a) or paragraph (1) of subdivision (b), or convictions, arrests, or charges as specified in paragraph (2) of subdivision (b) if the search is conducted pursuant to paragraph (2) of subdivision (b), shall not be considered by the court in making a determination regarding the issuance of an order pursuant to this part. That information shall be destroyed and shall not become part of the public file in this or any other civil proceeding.

(c) (1) After issuing its ruling, the court shall advise the parties that they may request the information described in subdivision (b) upon which the court relied. The court shall admonish the party seeking the proposed order that it is unlawful, pursuant to Sections 11142 and 13303 of the Penal Code, to willfully release the information, except as authorized by law.

(2) Upon the request of either party to obtain the information described in subdivision (b) upon which the court relied, the court shall release the information to the parties or, upon either party’s request, to the party’s attorney in that proceeding.

(3) The party seeking the proposed order may release the information to the party’s counsel, court personnel, and court-appointed mediators for the purpose of seeking judicial review of the court’s order or for purposes of court proceedings under Section 213.5 of the Welfare and Institutions Code.

(d) Information obtained as a result of the search conducted pursuant to subdivision (a) and relied upon by the court shall be maintained in a confidential case file and shall not become part of the public file in the proceeding or any other civil proceeding. However, the contents of the confidential case file shall be disclosed to the court-appointed mediator assigned to the case or to a child custody evaluator appointed by the court pursuant to Section 3111 of this code or Section 730 of the Evidence Code. All court-appointed mediators and child custody evaluators appointed or contracted by the court pursuant to Section 3111 of this code or Section 730 of the Evidence Code who receive information from the search conducted pursuant to subdivision (a) shall be subject to, and shall comply with, the California Law Enforcement Telecommunications System policies, practices, and procedures adopted pursuant to Section 15160 of the Government Code.

(e) If the results of the search conducted pursuant to subdivision (a) indicate that an outstanding warrant exists against the subject of the order, the court shall order the clerk of the court to immediately notify, by the most effective means available, appropriate law enforcement officials of the issuance and contents of a protective order and of any other information obtained through the search that the court determines is appropriate. The law enforcement officials so notified shall take all actions necessary to execute any outstanding warrants or any other actions, with respect to the restrained person, as appropriate and as soon as practicable.

(f) If the results of the search conducted pursuant to subdivision (a) indicate that the subject of the order owns a registered firearm or if the court receives evidence of the subject’s possession of a firearm or ammunition, the court shall make a written record as to whether the subject has relinquished the firearm or ammunition and provided proof of the required storage, sale, or relinquishment of the firearm or ammunition. If evidence of compliance with firearms prohibitions is not provided pursuant to subdivision (c) of Section 6389, the court shall order the clerk of the court to immediately notify, by the most effective means available, appropriate law enforcement officials of the issuance and contents of a protective order, information about the firearm or ammunition, and of any other information obtained through the search that the court determines is appropriate. The law enforcement officials so notified shall take all actions necessary to obtain those and any other firearms or ammunition owned, possessed, or controlled by the restrained person and to address any violation of the order with respect to firearms or ammunition as appropriate and as soon as practicable.

(g) If the results of the search conducted pursuant to subdivision (a) indicate that the subject of the order is currently on parole or probation, the court shall order the clerk of the court to immediately notify, by the most effective means available, the appropriate parole or probation officer of the issuance and contents of a protective order issued by the court and of any other information obtained through the search that the court determines is appropriate. That officer shall take all actions necessary to revoke parole or probation, or any other actions, with respect to the restrained person, as appropriate and as soon as practicable.

(h) This section shall not delay the granting of an application for an order that may otherwise be granted without the information resulting from the database search. If the court finds that a protective order under this part should be granted on the basis of the affidavit presented with the petition, the court shall issue the protective order and shall then ensure that a search is conducted pursuant to subdivision (a) prior to the hearing.