BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1050 (Ma)
As Amended June 21, 2010
Hearing Date: June 29, 2010
Fiscal: Yes
Urgency: No
KB:jd
SUBJECT
Child Custody: Preferences of Child
DESCRIPTION
This bill would, among other things, require 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 would be required to make that finding on
the record. This bill would further require the court to
provide alternative means of obtaining information regarding the
child's preferences if the court precludes the calling of a
child as a witness.
BACKGROUND
Due to their inherent nature, family law cases often involve
children who are directly impacted by the outcomes of custody
and visitation decisions. In recent years, there have been
growing concerns about the lack of an effective avenue for
children's participation in such proceedings. There is a
general consensus that children's wishes should be given due
weight when they are of sufficient age and capacity so as to
reason an intelligent preference, however, stakeholders have
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
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direct participation can lead the court to make decisions that
are not fully informed, which can have dire consequences for the
family. The complexity of this situation is compounded by the
fact that parents in family law proceedings, unlike in
dependency proceedings, still retain their decision-making
authority, and their children are not actual parties to the
case. Indeed, the Elkins Family Law Task Force, which recently
completed a comprehensive review of family courts, received
numerous comments and heard extensive testimony from various
stakeholders and advocates on this issue. Some of the testimony
was from adults who were involved in traumatic family law
proceedings as children and expressed their sincere beliefs that
being able to speak to a judge directly would have lead to a
better outcome for them.
In its final recommendations, the Task Force 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. (Elkins Family Law Task Force, Final
Report and Recommendations, February 2010, available at
http://www.courtinfo.ca.gov/jc/tflists/documents/elkins-finalrepo
rt.pdf .
The author has since been working with a number of interested
stakeholders in an effort to develop a proposal that would
afford children a better opportunity to have their preferences
heard while balancing the need for judicial discretion to
protect the best interest of the child, and due process for all
parties. This bill is the product of those discussions.
CHANGES TO EXISTING LAW
Existing law requires the family court, if a child is of
sufficient age and capacity to reason so as to form an
intelligent preference as to custody, to consider and give due
weight to the wishes of the child in making an order granting or
modifying custody. (Fam. Code Sec. 3042.)
This bill would require the family court to consider and give
due weight to the wishes of the 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.
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This bill would require 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, the bill would
require the court to make that finding on the record.
This bill would provide that nothing in this bill shall be
interpreted to prevent a child who is less than 14 years old
from addressing the court regarding custody or visitation, if
the court determines that is appropriate pursuant to the child's
best interest.
This bill would require the court to provide alternative means
of obtaining information regarding the child's preferences if
the court precludes the calling of a child as a witness.
This bill would provide that nothing in this section shall be
construed to require a child to express his or her preference to
the court as to custody or visitation.
This bill would provide 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. This
bill would further provide that a party or party's attorney may
also indicate to the judge that the child wishes to address the
court.
This bill would require the Judicial Council, no later than
January 1, 2012, to promulgate a rule of court establishing
procedures for the examination of a child witness.
COMMENT
1. Stated need for the bill
According to the author, although current law provides that a
court must give due weight to the wishes of a child in custody
proceedings if the child is of sufficient age and capacity so as
to form an intelligent preference, many children are not
routinely afforded the opportunity to express their wishes and
preference regarding custody and visitation to the family court.
The author asserts that AB 1050 will create a better avenue for
children to provide input to the court by requiring that those
children ages 14 or older be allowed to testify unless the court
makes a finding that doing so is not in their best interest.
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The author further states that AB 1050 will reduce the
likelihood that the court will simply ignore a child's wishes
and instead rely on input from third-party professionals such as
evaluators and minor's counsel.
2. Enhancing children's voices in custody and visitation
proceedings
Under current law, the family court is required to give due
weight to the wishes of a child in making an order granting or
modifying custody. (Fam. Code Sec. 3042.) More often than not,
the family court will not hear from the child directly, but
instead may receive information regarding the child's
preferences through an evaluator, mediator, or minor's counsel.
This practice has given rise to concerns that third-party
professionals, in addition to being costly to the parents, do
not in all cases adequately or accurately convey the wishes of
children to the court.
In order to better afford children with the opportunity to
directly address the court, this bill would provide that if the
child is 14 years of age or older, and wishes to address the
court, the child shall be permitted to do so, unless the court
finds that doing so is not in the child's best interest. In
that situation, the court would be required to make that finding
on the record. Studies have shown that children who are 14
years of age or older are generally mature enough to form
intelligent preferences, and are close enough to the age of
majority where the court should be considering their wishes with
respect to custody and visitation decisions. (See Ellen G.
Garrison, Children's Competence to Participate in Divorce
Custody Decisionmaking, Journal of Clinical Child Psychology,
Volume 20, Number 1, 1991.) However, there may be some
instances where a child who is 14 or older is not mature enough,
or is not capable of forming intelligent preferences. Or, for
example, the court could determine that the child's interests
would not be served by testifying because the case is
particularly contentious and that testifying could be
emotionally damaging to the child. In such cases, the court
would still have discretion to preclude the child from
testifying, but would have to articulate its reasons for doing
so on the record.
Children who are younger than 14 would not be automatically
precluded from testifying, however, the court would not have to
make specific findings on the record should they preclude them
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from doing so. However, regardless of age, if the court
determines that the child is of sufficient age and capacity so
as to reason an intelligent preference, this bill would require
that the court 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 would
be required to find alternative means of obtaining information
regarding the child's preferences. For example, a court could
utilize family court services, or appoint minor's counsel to
obtain this pertinent information.
In order to assist the court in determining whether a child
wishes to express his or her preferences, this bill would
require a minor's counsel, an evaluator, or a mediator who
provides recommendations to the judge, to indicate whether the
child wishes to address the court. The parties, or their
attorneys, would be authorized, but not required, to also
indicate to the judge that the child wishes to address the
court.
It should be noted that nothing in this bill would require 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 is
one of the many factors a court would undoubtedly have to weigh
in determining whether a child should be allowed to testify,
which underscores why judicial discretion is an important
component of ensuring the process is tailored to the child's
best interest.
Finally, in order to ensure that these practices are uniform,
this bill would require the Judicial Council to promulgate a
rule of court establishing procedures for the examination of a
child witness, and include guidelines on methods other than
direct testimony for obtaining information from a child on his
or her preferences.
Support : Association of Certified Family Law Specialists;
California Commission on the Status of Women; Center for
Judicial Excellence; Child Protective Parents Association;
Family Law Section of the State Bar; one individual
Opposition : None Known
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HISTORY
Source : Author
Related Pending Legislation : AB 939 (Committee on Judiciary)
would make various changes to family law proceedings
implementing a number of the legislative recommendations issued
by the Elkins Family Law Task Force. This bill is scheduled to
be heard in this committee on June 29, 2010.
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
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