BILL ANALYSIS
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CONSENT
Bill No: AB 1050
Author: Ma (D)
Amended: 6/21/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/29/10
AYES: Corbett, Harman, Hancock, Leno
NO VOTE RECORDED: Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 78-0, 5/11/09 (Consent) - See last page
for vote
SUBJECT : Child custody: preferences of child
SOURCE : Author
DIGEST : This bill, among other things, 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
childs best interest, in which case the court will be
required to make that finding on the record.
ANALYSIS : 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. (Section 3042 of the
CONTINUED
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Family Code)
This bill requires 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.
This bill provides that:
1. If the child is 14 years of age or older and wishes to
address the court regarding custody or visitation, the
child shall be permitted to do so, unless the court
determines that doing so is not in the child's best
interests. In that case, the court shall make that
finding on the record.
2. Nothing in this section shall be interpreted to prevent
a child who is less than 14 years of age from addressing
the court regarding custody or visitation, if the court
determines that is appropriate pursuant to the child's
best interest.
3. If the court precludes the calling of a child as a
witness, the court shall provide alternative means of
obtaining information regarding the child's preferences.
4. Nothing in this section shall be construed to require a
child to express to the court his/her preference as to
custody or visitation.
5. To assist the court in determining whether a child
wishes to express his/her preference as to custody or
visitation to the court, a minor's counsel, an
evaluator, an investigator, or a mediator who provides
recommendations to the judge pursuant to Section 3183 of
the Family Code shall indicate to the judge that the
child wishes to address the court, or the judge may make
that inquiry in the absence of that request. A party or
a party's attorney may also indicate to the judge that
the child wishes to address the court or judge.
6. The Judicial Council shall, no later than January 1,
2012, promulgate a rule of court establishing procedures
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for the examination of a child witness, and include
guidelines on methods other than direct testimony for
obtaining information from a child on his/her
preferences.
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 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,
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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-finalreport.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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/2/10)
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
ARGUMENTS IN SUPPORT : According to the author's office,
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's office asserts that this bill 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. The author's
office further states that this bill 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.
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ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Bass
NO VOTE RECORDED: Duvall, Yamada
RJG:mw 8/2/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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