BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1050| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ CONSENT Bill No: AB 1050 Author: Ma (D) Amended: 8/2/10 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 4-0, 6/29/10 AYES: Corbett, Harman, Hancock, Leno NO VOTE RECORDED: Walters SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 78-0, 5/11/09 (Consent) - See last page for vote SUBJECT : Child custody: preferences of child SOURCE : Author DIGEST : This bill, among other things, requires 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 childs best interest, in which case the court will be required to make that finding on the record. ANALYSIS : 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. (Section 3042 of the CONTINUED AB 1050 Page 2 Family Code) This bill requires 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. This bill provides that: 1. If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child's best interests. In that case, the court shall state that finding on the record. 2. Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child's best interests. 3. If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child's preferences. 4. To assist the court in determining whether the child wishes to express his/her preference or to provide other input regarding custody or visitation to the court, a minor's counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 of the Family Code shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party's attorney may also indicate to the judge that the child wishes to address the court or judge. 5. The Judicial Council shall, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for CONTINUED AB 1050 Page 3 obtaining information or other input from the child regarding custody or visitation. 6. Nothing in this section shall be construed to require the child to express to the court his/her preference or to provide other input regarding custody or visitation. 7. The changes made in this bill become operative on January 1, 2012. 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 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. CONTINUED AB 1050 Page 4 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-finalreport.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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 8/3/10) Association of Certified Family Law Specialists California Alliance of Child and Family Services California Protective Parents Association Center for Judicial Excellence Commission on the Status of Women County Welfare Directors Association Executive Committee of the Family Law Section of the State Bar The Child Abuse Prevention Center ARGUMENTS IN SUPPORT : According to the author's office, 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's office asserts that this bill will create a better avenue for children to provide input to the CONTINUED AB 1050 Page 5 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. The author's office further states that this bill 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. ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley, Buchanan, Caballero, Charles Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra Strickland, Swanson, Torlakson, Torres, Torrico, Tran, Villines, Bass NO VOTE RECORDED: Duvall, Yamada RJG:mw 8/4/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED