BILL ANALYSIS                                                                                                                                                                                                    



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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1050 (Ma)
          As Amended August 2, 2010
          Majority vote
           
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          |ASSEMBLY:  |78-0 |(May 11, 2009)  |SENATE: |33-0 |(August 5,     |
          |           |     |                |        |     |2010)          |
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           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.








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          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  








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          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  








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          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  
           


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