BILL ANALYSIS Ó AB 2098 Page 1 Date of Hearing: April 20, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 2098 (Maienschein) - As Amended March 28, 2016 ----------------------------------------------------------------- |Policy |Judiciary |Vote:|8 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 AB 2098 Page 2 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 AB 2098 Page 3 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, AB 2098 Page 4 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 AB 2098 Page 5 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 AB 2098 Page 6 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. AB 2098 Page 7 Analysis Prepared by:Jennifer Swenson / APPR. / (916) 319-2081