Amended in Assembly March 28, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2098


Introduced by Assembly Member Maienschein

(Principal coauthor: Senator Anderson)

(begin deleteCoauthor: end deletebegin insertCoauthors: end insertAssemblybegin delete Memberend deletebegin insert Members Baker andend insert Waldron)

(Coauthors: Senatorsbegin insert Bates,end insert Beall, Cannella, and Fuller)

February 17, 2016


An act tobegin delete amendend deletebegin insert amend, repeal, and addend insert Section 3042 of the Family Code, relating to child custody.

LEGISLATIVE COUNSEL’S DIGEST

AB 2098, as amended, Maienschein. Child custody: preferences of child.

Existing law requires the court to consider and give due weight to the wishes of a 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. Existing law also 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.

Thisbegin delete billend deletebegin insert bill, commencing July 1, 2017,end insert would instead require the court to permit a child who isbegin delete 7end deletebegin insert 10end insert years of age orbegin delete olderend deletebegin insert older, of his or her own volition,end insert to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interests.begin insert The bill would require the court to determine whether the child is addressing the court of his or her own volition and to provide the child with an age-appropriate form developed by the Judicial Council that explains to the child specified information prior to the child addressing the court regarding custody or visitation. The bill, commencing January 1, 2017, would require the Judicial Council, no later than July 1, 2017, to develop this age-appropriate form.end insert

Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 3042 of the end insertbegin insertFamily Codeend insertbegin insert is amended to
2read:end insert

3

3042.  

(a) If a child is of sufficient age and capacity to reason
4so as to form an intelligent preference as to custody or visitation,
5the court shall consider, and give due weight to, the wishes of the
6child in making an order granting or modifying custody or
7visitation.

8(b) In addition to the requirements of subdivision (b) of Section
9765 of the Evidence Code, the court shall control the examination
10of a child witness so as to protect the best interests of the child.

11(c) If the child is 14 years of age or older and wishes to address
12the court regarding custody or visitation, the child shall be
13permitted to do so, unless the court determines that doing so is not
14in the child’s best interests. In that case, the court shall state its
15reasons for that finding on the record.

16(d) Nothing in this section shall be interpreted to prevent a child
17who is less than 14 years of age from addressing the court regarding
18custody or visitation, if the court determines thatbegin insert itend insert is appropriate
19pursuant to the child’s best interests.

begin insert

20
(e) No later than July 1, 2017, the Judicial Council shall develop
21an age-appropriate form that explains to a child who elects to
22address the court regarding custody and visitation all of the
23following:

end insert
begin insert

24
(1) The process of addressing the court.

end insert
begin insert

25
(2) The opportunity to address the court should only be sought
26if the child voluntarily chooses to do so.

end insert
begin insert

27
(3) Possible reasons why a child may or may not want to address
28the court.

end insert
begin insert

29
(4) Alternative means of providing the court with the child’s
30input and other information regarding the child’s preferences if
31the child does not wish to address the court.

end insert
begin delete

P3    1(e)

end delete

2begin insert(f)end insert If the court precludes the calling of any child as a witness,
3the court shall provide alternative means of obtaining input from
4the child and other information regarding the child’s preferences.

begin delete

5(f)

end delete

6begin insert(g)end insert To assist the court in determining whether the child wishes
7to express his or her preference or to provide other input regarding
8custody or visitation to the court, a minor’s counsel, an evaluator,
9an investigator, or a mediator who provides recommendations to
10the judge pursuant to Section 3183 shall indicate to the judge that
11the child wishes to address the court, or the judge may make that
12inquiry in the absence of that request. A party or a party’s attorney
13may also indicate to the judge that the child wishes to address the
14court or judge.

begin delete

15(g)

end delete

16begin insert(h)end insert Nothing in this section shall be construed to require the child
17to express to the court his or her preference or to provide other
18input regarding custody or visitation.

begin delete

19(h)

end delete

20begin insert(i)end insert The Judicial Council shall, no later than January 1, 2012,
21promulgate a rule of court establishing procedures for the
22examination of a child witness, and include guidelines on methods
23other than direct testimony for obtaining information or other input
24from the child regarding custody or visitation.

begin delete

25(i) The changes made to subdivisions (a) to (g), inclusive, by
26the act adding this subdivision shall become operative on January
271, 2012.

end delete
begin insert

28
(j) This section shall become inoperative on July 1, 2017, and,
29as of January 1, 2018, is repealed, unless a later enacted statute,
30that becomes operative on or before January 1, 2018, deletes or
31extends the dates on which it becomes inoperative and is repealed.

end insert
32begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 3042 is added to the end insertbegin insertFamily Codeend insertbegin insert, to read:end insert

begin insert
33

begin insert3042.end insert  

(a) If a child is of sufficient age and capacity to reason
34so as to form an intelligent preference as to custody or visitation,
35the court shall consider, and give due weight to, the wishes of the
36child in making an order granting or modifying custody or
37visitation.

38
(b) In addition to the requirements of subdivision (b) of Section
39765 of the Evidence Code, the court shall control the examination
40of a child witness so as to protect the best interests of the child.

P4    1
(c) If the child is 10 years of age or older and wishes, of his or
2her own volition, to address the court regarding custody or
3visitation, the child shall be permitted to do so, unless the court
4determines that doing so is not in the child’s best interests. In that
5case, the court shall state its reasons for that finding on the record.

6
(d) Nothing in this section shall be interpreted to prevent a child
7who is less than 10 years of age from addressing the court
8regarding custody or visitation, if the court determines that it is
9appropriate pursuant to the child’s best interests.

10
(e) (1) Prior to the child addressing the court regarding custody
11or visitation, the court shall determine whether the child is
12addressing the court of his or her own volition and shall provide
13the child with an age-appropriate form developed by the Judicial
14Council that explains to the child all of the following:

15
(A) The process of addressing the court.

16
(B) The opportunity to address the court should only be sought
17if the child voluntarily chooses to do so.

18
(C) Possible reasons why a child may or may not want to
19address the court.

20
(D) Alternative means of providing the court with the child’s
21input and other information regarding the child’s preferences if
22the child does not wish to address the court.

23
(f) If the court precludes the calling of any child as a witness,
24the court shall provide alternative means of obtaining input from
25the child and other information regarding the child’s preferences.

26
(g) To assist the court in determining whether the child wishes
27to express his or her preference or to provide other input regarding
28custody or visitation to the court, a minor’s counsel, an evaluator,
29an investigator, or a mediator who provides recommendations to
30the judge pursuant to Section 3183 shall indicate to the judge that
31the child wishes to address the court, or the judge may make that
32inquiry in the absence of that request. A party or a party’s attorney
33may also indicate to the judge that the child wishes to address the
34court or judge.

35
(h) Nothing in this section shall be construed to require the
36child to express to the court his or her preference or to provide
37other input regarding custody or visitation.

38
(i) The Judicial Council shall promulgate a rule of court
39establishing procedures for the examination of a child witness,
40and include guidelines on methods other than direct testimony for
P5    1obtaining information or other input from the child regarding
2custody or visitation.

3
(j) This section shall become operative on July 1, 2017.

end insert
begin delete
4

SECTION 1.  

Section 3042 of the Family Code is amended to
5read:

6

3042.  

(a) If a child is of sufficient age and capacity to reason
7so as to form an intelligent preference as to custody or visitation,
8the court shall consider, and give due weight to, the wishes of the
9child in making an order granting or modifying custody or
10visitation.

11(b) In addition to the requirements of subdivision (b) of Section
12765 of the Evidence Code, the court shall control the examination
13of a child witness so as to protect the best interests of the child.

14(c) If the child is seven years of age or older and wishes to
15address the court regarding custody or visitation, the child shall
16be permitted to do so, unless the court determines that doing so is
17not in the child’s best interests. In that case, the court shall state
18its reasons for that finding on the record.

19(d) Nothing in this section shall be interpreted to prevent a child
20who is less than seven years of age from addressing the court
21regarding custody or visitation, if the court determines that is
22appropriate pursuant to the child’s best interests.

23(e) If the court precludes the calling of any child as a witness,
24the court shall provide alternative means of obtaining input from
25the child and other information regarding the child’s preferences.

26(f) To assist the court in determining whether the child wishes
27to express his or her preference or to provide other input regarding
28custody or visitation to the court, a minor’s counsel, an evaluator,
29an investigator, or a mediator who provides recommendations to
30the judge pursuant to Section 3183 shall indicate to the judge that
31the child wishes to address the court, or the judge may make that
32inquiry in the absence of that request. A party or a party’s attorney
33may also indicate to the judge that the child wishes to address the
34court or judge.

35(g) Nothing in this section shall be construed to require the child
36to express to the court his or her preference or to provide other
37input regarding custody or visitation.

38(h) The Judicial Council shall, no later than January 1, 2012,
39promulgate a rule of court establishing procedures for the
40examination of a child witness, and include guidelines on methods
P6    1other than direct testimony for obtaining information or other input
2from the child regarding custody or visitation.

3(i) The changes made to subdivisions (a) to (g), inclusive, by
4the act adding this subdivision shall become operative on January
51, 2012.

end delete

CORRECTIONS:

Text--Page 4.




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Corrected 3-31-16—See last page.     98