BILL ANALYSIS Ó
AB 2098
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
2098 (Maienschein) - As Amended March 28, 2016
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Urgency: No State Mandated Local Program: NoReimbursable: No
SUMMARY: This bill, 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:
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
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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.
FISCAL EFFECT:
1)Unknown, but likely significant costs in the hundreds of
thousands of dollars (GF) for the courts to determine if the
testimony of the child is, in fact, voluntary, and for
disruptions to court proceedings, additional challenges to
rulings involving child testimony, and an increased number of
appeals in disputed custody cases where children testify.
2)Minor administrative costs to Judicial Council to develop the
required forms.
COMMENTS:
1)Purpose. 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
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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 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.
2)Background. 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. However, stakeholders
have had 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, and that
can have dire consequences for the child and the family.
The Legislature opted, with AB 1050 (Ma), Chapter 187,
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Statutes of. 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.
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.
3)Arguments in Support. California Protective Parents
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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
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."
4)Arguments in Opposition. 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. They write in
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opposition:
"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."
5)Prior Legislation. AB 1050 (Ma), Chap. 187, Stats. 2010
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 child's best interest, in which case the court will be
required to make that finding on the record.
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Analysis Prepared by:Jennifer Swenson / APPR. / (916)
319-2081