BILL ANALYSIS Ó
AB 2098
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2098
(Maienschein) - As Amended March 28, 2016
SUBJECT: CHILD CUSTODY: CHILD PREFERENCES
KEY ISSUE: SHOULD THE age at which the PRESUMPTION THAT
CHILDREN WHO CHOOSE TO TESTIFY IN THEIR CHILD CUSTODY PROCEEDING
may do so BE LOWERED from 14 years to 10 years AND SHOULD such
children BE PROVIDED WITH AN INFORMATION SHEET EXPLAINING THAT
THEIR TESTIMONY IS COMPLETELY VOLUNTARY?
SYNOPSIS
Children's lives are directly impacted by their parents' child
custody and visitation cases. Despite being directly impacted
by these decisions, children are not parties to these cases, are
generally not represented by counsel and are not always
permitted to address the court. In response to concerns that
children's wishes were being shut out of the family law process,
the Legislature in 2010 created a presumption that youth 14 and
over could, if they choose, testify in their custody or
visitation proceedings, unless the court determined that doing
so was not in their best interest. This bill, sponsored by the
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California Protective Parents Association, lowers that presumed
age to 10 years. However, to address concerns that children
that young may not be testifying voluntarily, but instead could
be pushed to do so by their parents, this bill requires that
before a child can testify, the child must be educated about the
importance of testifying voluntarily and also that the court
determine that the child is indeed testifying voluntarily.
In support of the bill, the author writes that there is a
continuing and ongoing problem that children who allege abuse
are being taken from the safe parent and placed with the abusive
parent by family courts, and this bill will help keep these
children safe by allowing them to speak directly to the court.
Supporters add that when children are not able to express their
wishes directly to the court, those wishes may be "distorted or
ignored" by court professionals and judges may not have an
accurate picture of the family.
This bill is strongly opposed by some family law practitioners
who believe that children are significantly harmed by being
dragged into the center of their parents' conflicts. These
groups believe that encouraging younger children to testify
could subject them to retaliation by one parent and may cause
guilt over "hurting one parent without real reason just to
please the other parent." The bill is also opposed by the
California Psychological Association who believes that while
children can report events from their environment, they cannot
make well-informed decisions about their custodial arrangements
(although it is important to note that this bill will not allow
children to make those decisions - only courts can do that).
SUMMARY: Effective July 1, 2017, lowers, from 14 to 10 years of
age, the age by when it is presumed that a child who wishes to
address the court regarding his or her custody case should be
permitted to do so. Specifically, this bill:
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1)Effective July 1, 2017, lowers, from 14 to 10 years of age,
the minimum age that a child who wishes to address the court
regarding a custody or visitation matter before the court
shall be permitted to do so, unless the court determines that
doing so is not in the child's best interest. Requires the
child to testify of his or her own volition.
2)Requires that, prior to the child addressing the court, the
court must: a) determine whether the child is testifying of
his or her own volition; and b) provide the child with an
age-appropriate form explaining to the child the process of
addressing the court, the opportunity to address the court
should only be sought if the child voluntarily chooses to do
so, the reasons why a child may or may not want to address the
court, and alternative means of providing the court with the
child's input and other information regarding the child's
preferences, if the child does not wish to address the court.
Requires Judicial Council to develop the required form by July
1, 2017.
EXISTING LAW:
1)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.
(Family Code Section 3042. Unless stated otherwise, all
further references are to that code.)
2)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. Provides
that this shall not be interpreted to prevent a child who is
less than 14 years old from addressing the court regarding
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custody or visitation, if the court determines that is
appropriate pursuant to the child's best interests, and
provides that this shall not be construed to require a child
to express his or her preference or provide input to the court
as to custody or visitation. 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. (Id.)
3)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. (Id.)
FISCAL EFFECT: Unknown
COMMENTS: By the very nature of the child custody and
visitation proceedings, children are directly impacted by the
decisions in these cases, and that impact can be life altering.
Despite being directly impacted by these decisions, children are
not parties to these cases, are generally not represented by
counsel and are not always permitted to address the court. In
response to concerns that children's wishes were being shut out
of family law proceedings, the Legislature in 2010 created a
presumption that youth 14 and over could, if they choose,
testify in their custody or visitation proceedings, unless the
court determined that doing so was not in their best interest.
This bill lowers that presumed age to 10. However, to address
concerns that children that young may not be testifying
voluntarily, but instead could be pushed to do so by their
parents, this bill requires that the court first determine that
the child is testifying voluntarily and that the child first be
educated about the importance of testifying only if that is what
the child wants.
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In support of the bill, the author writes:
Since Family Code section 3042 was amended six years ago,
children age 14 or older who wish to address the court
regarding custody or visitation are permitted to do so.
The process has been successful, empowering children to
state their wishes and in some cases to ensure their
physical and sexual safety.
There continues to be an ongoing problem of children who
allege abuse being taken from safe parents and placed in
unsupervised contact or full custody of dangerous parents
by family/ divorce courts. This occurs often in domestic
violence cases. Witnessing domestic violence is highly
detrimental to children. Children are exceedingly unlikely
to fabricate abuse perpetrated against themselves.
This bill will broaden protection for children under age 14
who may report abuse after being placed with a parent. By
permitting children age ten years old or older who wish to
address the court regarding custody or visitation to do so.
AB 2098 would help keep children safe by ensuring their
ability to speak directly to the court if they wish,
beginning at age ten, regarding their wishes for custody
and visitation.
Weighing whether children should be able to testify directly in
their custody and visitation proceedings. There is a general
consensus, as well as a statutory requirement, that children's
wishes should be given due weight when children are of
sufficient age and capacity so as to reason an intelligent
preference. (Family Code Section 3042.) However, stakeholders
have had differing opinions on how a child's preferences should
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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, and that can have dire consequences for
the child and the family.
The complexity of these issues is compounded by the fact that
parents in family law proceedings, unlike those in dependency
proceedings, still retain their decision-making authority, and
their children are not parties to the case. Indeed, the Elkins
Family Law Task Force, which completed a comprehensive review of
family courts in 2010, 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.
(Judicial Council, Elkins Family Law Task Force: Final Report
and Recommendations 50-51 (April 2010).)
Legislature created a presumption that children 14 and over, who
so desire, should be able to address the court in their child
custody proceedings. Weighing these various considerations, the
Legislature opted, with AB 1050 (Ma), Chap. 187, Stats. 2010, to
better afford children who voluntarily request to do so the
opportunity to directly address the court by providing that if a
child is 14 years of age or older, and wishes to address the
court, the child should be permitted to do so, unless the court
finds that testifying is not in the child's best interests. If
the court finds that testifying is not in the child's best
interest, the court must make that finding on the record.
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Under the legislation, children who are younger than 14 are not
automatically precluded from testifying; however, the court does
not have to make specific findings on the record to preclude
them from testifying. However, regardless of age, if the court
determines that the child is of sufficient age and capacity so
as to reason an intelligent preference, the court must 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, a minor's counsel, an
evaluator, or a mediator who provides recommendations to the
judge must tell the court if the child wishes to address the
court. The parties and their attorneys, are also authorized,
but not required, to tell the judge that the child wishes to
address the court.
While AB 1050 was not opposed, at the time, various family law
practitioners raised many of the same concerns being raised
about this bill. However, since that bill became effective,
this Committee has not heard of any concerns with children
testifying in court; and, it appears, opponents' fears have not
materialized. Thus, it appears that courts are screening
children before they testify and appropriately applying the
presumption to ensure that children do not testify when it is
not in their best interest to do so.
This bill lowers the presumed age to 10, but also requires that
children receive more information about the process and that
courts ensure that they are testifying voluntarily. This bill
lowers the age by when children are presumed to be able to
testify from 14 to 10 years of age. However, this bill retains
the same presumption -- so that if a judge finds that it is not
in the child's best interest to testify, the court must disallow
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the child's testimony. Given the enhanced risk that younger
children are more susceptible to pressure from a parent and may
be pushed to testify even when they do not wish to do so, this
bill creates two additional protections. First, it requires the
court to provide the child, before the child testifies, with an
age-appropriate information sheet that explains the process and
explains that the child should only testify if he or she
voluntarily chooses, gives the reasons a child may or may not
want to testify and gives alternative means of providing the
court with the child's input should the child choose not to
testify. Judicial Council is required to develop this form.
Second, the bill mandates that the judge determine, again before
the child testifies, that the child is doing so voluntarily. If
the child does not appear to the judge to be testifying
voluntarily, the judge should disallow the testimony. This
should help ensure that even younger children are testifying
because they want to, not because of parental pressure.
It should be noted that nothing in this bill or in current law
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
underscores why judicial discretion is a critical component of
ensuring the process is tailored to the child's best interest.
Dependent youth who are 10 and older are permitted to
participate, and address the court, in their dependency
proceedings. While not completely similar, children's enhanced
participatory role in their dependency cases is relevant to the
discussion here. Family law cases can impact children almost as
much as dependency cases. The dependency court, like the family
court, gets to decide where they live and with whom they live.
However, unlike the family court proceedings generally, the
dependency court can also decide whether to terminate parental
rights and begin adoption proceedings. And unlike family court,
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children are parties to their dependency case and represented by
counsel. In family court, children are not parties and are
rarely represented by minor's counsel.
Studies have shown that there are many advantages to youth
participation at dependency hearings: "Attending court benefits
both the youth and the court. Youth have the opportunity to
understand the process by seeing firsthand the court
proceedings. They also develop a sense of control over the
process when they actively participate. The court learns more
about children than simply what is presented in reports."
(Andrea Khoury, Seen and Heard: Involving Children in Dependency
Court, 25 ABA Child Law Practice Vol. 10, p. 150 (Dec. 2006).)
Understanding the importance of having children participate in
their dependency proceedings, California law provides children
10 and over with notice of their dependency hearings and allows
them to attend and participate in those hearings and address the
court. (Welfare & Institutions Code Sections 290.1-295, 349.)
If a child who is 10 or older is not present at the hearing, the
court is required to determine whether the child was properly
notified of his or her right to attend the hearing, and the
court may continue the hearing to allow the child to be present,
unless the court determines that it is not in the best interest
of the child. (Welfare & Institutions Code Section 349.)
Again, dependency and family court are not the same and
different rules govern the different courts. However, the
impacts for children can be similar. This bill simply says that
a child 10 or older who wants to testify should be able to do
so, unless the court funds that is not in their best interest.
This does not make the child a party to the litigation, but may
provide the court with valuable information that it would not
otherwise have.
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Bill's backers argue that the Hague Convention provides support
for bill. In support of the bill, the sponsors point to the
Hague Convention on the Civil Aspects of International Child
Abduction (Hague Convention), which specifically allows a court
to refuse "to order the return of the child if it finds that the
child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of
its views." (The Hague Convention of 25 October 1980 on the
Civil Aspects of International Child Abduction, T.I.A.S. No. 11,
670, reprinted at 19 I.L.M. 1501, Section 13; 22 U.S.C. Section
9001 et al.) The Hague Convention does not specify what it
considers to be an appropriate age. Some California courts have
found under that Hague Convention standard that children as
young as 8 can testify, but other courts have found that even
older children could not testify, based on the specifics of
those children. (See, e.g., Escobar v. Flores (2010) 183
Cal.App.4th 737, 747-751.) The Hague Convention requires a
case-by-case consideration of the age and maturity of the child,
which is precisely what the first part of the statute being
amended by this bill already provides: "If a child is of
sufficient age and capacity to reason so as to form an
intelligent preference as to custody or visitation, the court
shall consider, and give due weight to, the wishes of the child
in making an order granting or modifying custody or visitation."
(Section 3042 (a).) Thus, while the Hague Convention is
informative, it does not, by itself, lend support to this bill,
but simply makes clear that each child's request must be
carefully considered by the court.
ARGUMENTS IN SUPPORT: California Protective Parents Association
writes of the risks to children when they are not permitted to
testify in their custody cases:
Children are essential witnesses, but are not parties to
family court custody cases. Currently, children aged 14
and older are allowed to speak directly to the judge or
commissioner if they wish. Younger children may be asked
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to speak to ancillary professionals, including child
custody recommending counselors, evaluators, and attorneys.
Their wishes for custody and visitation may be distorted
or ignored by the professionals whose reports are provided
to the court prior to the hearing. Most self-represented
litigants do not know how to request an evidentiary
hearing, or examine the professional to ensure factual
accuracy of the report. The court routinely makes custody
and visitation determinations based on report
recommendations without hearing direct testimony from, and
assessing the credibility of, children regarding their
wishes. The result is that children may be placed with
parents who are not appropriate or safe because the
children were not allowed to speak to the court.
The Center for Judicial Excellence writes that its organization
has dealt with "innumerable cases involving children whose
safety was and is being ignored by family courts, whose
childhoods were destroyed, and whose voices were silenced or
distorted by a bevy of intermediaries charged with ascertaining
'facts' for the courts. These intermediaries include but are
not limited to overworked, undertrained family court services
mediators (child custody recommending counselors), as well as
highly paid court appointees who supposedly have these
children's "best interests" at heart (i.e., minor's counsel,
reunification therapists, custody evaluators, special masters,
etc.). Encouraging direct communication between a judge or
commissioner and the child whose life and safety rests in his or
her hands is a vital access-to-justice issue, particularly for
the many California children who report physical or sexual abuse
by a parent."
Talk About Abuse to Liberate Kids succinctly states: "We need
to give these children direct access to the Judge and a chance
to have their voice heard."
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ARGUMENTS IN OPPOSITION: The California Psychological
Association objects to the bill, believing it unnecessary and
not in children's best interests:
Children can accurately report events from their
environment if interviewed carefully, by trained
interviewers, and with external influences considered and
controlled for. They can't make well informed decisions
about custody arrangements.
When interviewed under appropriate conditions by a trained
and objective interviewer, young children can accurately
relate information about their lives and recent
experiences. The quality of the data breaks down as time
increases between the events in question and the interview,
or if the child is exposed to suspicion, intimidation, or
an adult with a strong emotional agenda. Psychologists
build information about the reliability of children's
statements by exploring for consistency and context and
comparing it to other data. Mental health professionals
are trained NOT to ask children where they want to live,
and for good reason. It asks for a conclusion while giving
us no information about the quality of information or
reasoning that led to it.
The Association of Certified Family Law Specialists opposes the
bill as introduced (which lowered the presumed age to 7, and did
not require either the information sheet or the judicial
determination of voluntariness that are included in the latest
amendments to the bill), arguing that a young child is simply
too young to participate in the hearing:
A seven year old child, who will typically be unrepresented
at the hearing, does not have the emotional stamina to
stand up to the pressure that one or both of their parents
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typically place on a child in these high conflict cases.
It is important to keep young children out of the parental
controversy or they become parentified and emotionally
embroiled in their parents' litigation which only
emotionally harms them. In addition, a child of this age
would be more likely to be susceptible to retaliation from
one of the parents for the adverse testimony that is
provided. This change could be very detrimental to the
child.
The Association of Family and Conciliation Courts also opposes
the previous version of the bill, arguing that the bill is
"totally unnecessary" and that it can have a "real impact on the
children involved." The group adds:
Most people have no real understanding of how traumatic
parental conflict can be for a child of any age. The
trauma is multiplied a hundredfold when the child is pulled
into the center of that conflict by one or both parents. .
. . What can be surprising is that a child may reject a
parent with whom that child has a safe and unconditional
loving relationship, knowing that parent will continue to
love them, and picking the less stable parent-child
relationship in an attempt to either prove their love to
one whose love is "conditional" or feel the need to protect
the less emotionally stable parent with less adequate
parenting ability and becoming, in effect, the parent in
the relationship.
REGISTERED SUPPORT / OPPOSITION:
Support
California Protective Parents Association (sponsor)
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Center for Judicial Excellence
Incest Survivors' Speakers Bureau of California
Mothers of Lost Children
Talk About Abuse to Liberate Kids
Opposition
Association of Certified Family Law Specialists
Association of Family and Conciliation Courts
California Psychological Association
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
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