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