Friday, May 8, 2009

Anti-Parental Alienation Language Stripped from California Bill

by Mark Godbey
May 8, 2009

Language to deny judges the right to accept the "non-scientific" theories in Family Court cases was removed from a proposed California law last week.

California Assembly Bill 612 (AB612) was targeted to deny the use of Parental Alienation and Parental Alienation Syndrome as part of an evaluators report or considered as evidence in custody proceedings. An analysis of the Assembly Judiciary Committee found the bills sponsorship used "anecdotal evidence" is pushing for this measure and would be the first enacted anywhere in this country.

"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," states the report. The complete analysis can be found on the California Legal Information website.

"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."

It would seem that the sponsors of this bill were set on banning "significant admissible evidence" as well and this is not the first time the sponsors, and certain co-sponsors of this similar were set on pushing a child custody bill that would deny children to shared parenting after divorce. This is the third year in a row at such an attempt.

The Legislative Committee select the final language of the bill:
Section 3027.3 1 (a) "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
and/or referrals are made to the child welfare services agency."
(b) A child's expression of significant hostility toward a parent can, in the discretion of the court, be admitted as possible corroborating evidence that the parent has abused the child. The court cannot decide 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 that parent.
(c) On or after January 1, 2010, the provisions of this section shall be included in all trainings required pursuant to Section 3110.5.
The committee report goes on further to state:

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 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
, 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 bill, the California Psychological Association stated "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 to the bill stated:
More pernicious attempts could be made by parent who
cancels the other parent's visit without telling the
child that the visit has been canceled, 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."

The committee report pointed out that PA and PAS training were not excluded in other states rather:

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
Also in oppostion to the the bill were the California Judges Association and the Family Law Section of the State Bar:
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."

With that action the Assembly Judiciary Committee accepted the bill by a vote of 9-0 and one assemblyman not voting with the revised language, which amounts to the evidence "angry children" shall be taken into account, but is not the only evidence to be considered.

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