BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 1050 (Ma) As Amended June 21, 2010 Hearing Date: June 29, 2010 Fiscal: Yes Urgency: No KB:jd SUBJECT Child Custody: Preferences of Child DESCRIPTION This bill would, among other things, require the family court to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the court determines that doing so is not in the child's best interest, in which case the court would be required to make that finding on the record. This bill would further require the court to provide alternative means of obtaining information regarding the child's preferences if the court precludes the calling of a child as a witness. BACKGROUND Due to their inherent nature, family law cases often involve children who are directly impacted by the outcomes of custody and visitation decisions. In recent years, there have been growing concerns about the lack of an effective avenue for children's participation in such proceedings. There is a general consensus that children's wishes should be given due weight when they are of sufficient age and capacity so as to reason an intelligent preference, however, stakeholders have differing opinions on how a child's preferences should be conveyed to the court. Some stakeholders have advocated for minimizing child participation in family law proceedings because of the immense psychological and emotional pressure it can create for children who may already be in a vulnerable position. Yet others have asserted that children do better when they are informed and involved in the process, and that limiting their (more) AB 1050 (Ma) Page 2 of ? direct participation can lead the court to make decisions that are not fully informed, which can have dire consequences for the family. The complexity of this situation is compounded by the fact that parents in family law proceedings, unlike in dependency proceedings, still retain their decision-making authority, and their children are not actual parties to the case. Indeed, the Elkins Family Law Task Force, which recently completed a comprehensive review of family courts, received numerous comments and heard extensive testimony from various stakeholders and advocates on this issue. Some of the testimony was from adults who were involved in traumatic family law proceedings as children and expressed their sincere beliefs that being able to speak to a judge directly would have lead to a better outcome for them. In its final recommendations, the Task Force concluded that determinations of whether and in what manner a child testifies should be decided on a case-by-case basis taking into account the need for the court to hear from the child in order to make an informed decision, the child's wishes, and the obligation of the court to protect children from any harm that may result from their participation. (Elkins Family Law Task Force, Final Report and Recommendations, February 2010, available at http://www.courtinfo.ca.gov/jc/tflists/documents/elkins-finalrepo rt.pdf . The author has since been working with a number of interested stakeholders in an effort to develop a proposal that would afford children a better opportunity to have their preferences heard while balancing the need for judicial discretion to protect the best interest of the child, and due process for all parties. This bill is the product of those discussions. CHANGES TO EXISTING LAW Existing law requires the family court, if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the child in making an order granting or modifying custody. (Fam. Code Sec. 3042.) This bill would require the family court to consider and give due weight to the wishes of the child in making an order granting or modifying custody or visitation, if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation. AB 1050 (Ma) Page 3 of ? This bill would require the court to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the court determines that doing so is not in the child's best interests, and in that case, the bill would require the court to make that finding on the record. This bill would provide that nothing in this bill shall be interpreted to prevent a child who is less than 14 years old from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child's best interest. This bill would require the court to provide alternative means of obtaining information regarding the child's preferences if the court precludes the calling of a child as a witness. This bill would provide that nothing in this section shall be construed to require a child to express his or her preference to the court as to custody or visitation. This bill would provide that a minor's counsel, evaluator, investigator, or a mediator who provides recommendations to the court, shall indicate to the judge whether the child wishes to address the court, or the judge may make that inquiry. This bill would further provide that a party or party's attorney may also indicate to the judge that the child wishes to address the court. This bill would require the Judicial Council, no later than January 1, 2012, to promulgate a rule of court establishing procedures for the examination of a child witness. COMMENT 1. Stated need for the bill According to the author, although current law provides that a court must give due weight to the wishes of a child in custody proceedings if the child is of sufficient age and capacity so as to form an intelligent preference, many children are not routinely afforded the opportunity to express their wishes and preference regarding custody and visitation to the family court. The author asserts that AB 1050 will create a better avenue for children to provide input to the court by requiring that those children ages 14 or older be allowed to testify unless the court makes a finding that doing so is not in their best interest. AB 1050 (Ma) Page 4 of ? The author further states that AB 1050 will reduce the likelihood that the court will simply ignore a child's wishes and instead rely on input from third-party professionals such as evaluators and minor's counsel. 2. Enhancing children's voices in custody and visitation proceedings Under current law, the family court is required to give due weight to the wishes of a child in making an order granting or modifying custody. (Fam. Code Sec. 3042.) More often than not, the family court will not hear from the child directly, but instead may receive information regarding the child's preferences through an evaluator, mediator, or minor's counsel. This practice has given rise to concerns that third-party professionals, in addition to being costly to the parents, do not in all cases adequately or accurately convey the wishes of children to the court. In order to better afford children with the opportunity to directly address the court, this bill would provide that if the child is 14 years of age or older, and wishes to address the court, the child shall be permitted to do so, unless the court finds that doing so is not in the child's best interest. In that situation, the court would be required to make that finding on the record. Studies have shown that children who are 14 years of age or older are generally mature enough to form intelligent preferences, and are close enough to the age of majority where the court should be considering their wishes with respect to custody and visitation decisions. (See Ellen G. Garrison, Children's Competence to Participate in Divorce Custody Decisionmaking, Journal of Clinical Child Psychology, Volume 20, Number 1, 1991.) However, there may be some instances where a child who is 14 or older is not mature enough, or is not capable of forming intelligent preferences. Or, for example, the court could determine that the child's interests would not be served by testifying because the case is particularly contentious and that testifying could be emotionally damaging to the child. In such cases, the court would still have discretion to preclude the child from testifying, but would have to articulate its reasons for doing so on the record. Children who are younger than 14 would not be automatically precluded from testifying, however, the court would not have to make specific findings on the record should they preclude them AB 1050 (Ma) Page 5 of ? from doing so. However, regardless of age, if the court determines that the child is of sufficient age and capacity so as to reason an intelligent preference, this bill would require that the court consider, and give due weight to, the child's wishes in making both custody or visitation orders. If the court precludes the child from testifying, then the court would be required to find alternative means of obtaining information regarding the child's preferences. For example, a court could utilize family court services, or appoint minor's counsel to obtain this pertinent information. In order to assist the court in determining whether a child wishes to express his or her preferences, this bill would require a minor's counsel, an evaluator, or a mediator who provides recommendations to the judge, to indicate whether the child wishes to address the court. The parties, or their attorneys, would be authorized, but not required, to also indicate to the judge that the child wishes to address the court. It should be noted that nothing in this bill would require a child to express to the court his or her preference as to custody or visitation. These provisions are strictly intended to provide an avenue to participation for children who are willing and able to do so, not to force, or unduly pressure, children to express their wishes against their will. This is one of the many factors a court would undoubtedly have to weigh in determining whether a child should be allowed to testify, which underscores why judicial discretion is an important component of ensuring the process is tailored to the child's best interest. Finally, in order to ensure that these practices are uniform, this bill would require the Judicial Council to promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for obtaining information from a child on his or her preferences. Support : Association of Certified Family Law Specialists; California Commission on the Status of Women; Center for Judicial Excellence; Child Protective Parents Association; Family Law Section of the State Bar; one individual Opposition : None Known AB 1050 (Ma) Page 6 of ? HISTORY Source : Author Related Pending Legislation : AB 939 (Committee on Judiciary) would make various changes to family law proceedings implementing a number of the legislative recommendations issued by the Elkins Family Law Task Force. This bill is scheduled to be heard in this committee on June 29, 2010. Prior Legislation : None Known Prior Vote : Assembly Judiciary Committee (Ayes 10, Noes 0) Assembly Floor (Ayes 78, Noes 0) **************