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