BILL ANALYSIS AB 1050 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1050 (Ma) As Amended August 2, 2010 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |78-0 |(May 11, 2009) |SENATE: |33-0 |(August 5, | | | | | | |2010) | ----------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY : Provides when children may address the family court regarding custody or visitation. Specifically, this bill : 1)Requires 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, requires the court to state its reasons for that finding on the record. 2)Provides 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 interests. 3)Requires the court to provide alternative means of obtaining information regarding the child's input and other information if the court precludes the calling of a child as a witness. 4)Provides 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. Further provides that a party or party's attorney may also indicate to the judge that the child wishes to address the court. 5)Provides that nothing in this bill shall be construed to require a child to express his or her preference or provide input to the court as to custody or visitation. 6)Requires the Judicial Council, no later than January 1, 2012, to promulgate a rule of court establishing procedures for the examination of a child witness. AB 1050 Page 2 7)Provides that the provisions in #1 through #5 become operative on January 1, 2012. The Senate amendments make the changes described above. EXISTING LAW requires a court to consider and give due weight to the wishes of a child in making an order granting or modifying custody, provided the child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody. AS PASSED BY THE ASSEMBLY , this bill clarified that in a custody case, the court must consider, and give due weight to, the wishes of a child, who is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, particularly if the health, safety or welfare of the child is at issue. FISCAL EFFECT : According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: 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 AB 1050 Page 3 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. 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. In order to better afford children with the opportunity to directly address the court, this bill provides that if a 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 interests. In that situation, the court would be required to make that finding on the record. Under the bill, children who are younger than 14 are not automatically precluded from testifying; however, the court would not have to make specific findings on the record should they preclude them 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 requires 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 is required to find alternative means of obtaining information regarding the child's input. In order to assist the court in determining whether a child wishes to express his or her preferences, this bill requires 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, are 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 requires 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 AB 1050 Page 4 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 requires 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. The changes in the bill become operative on January 1, 2012, the same date the Judicial Council is required to promulgate its rule of court. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0005378