BILL ANALYSIS
AB 1050
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1050 (Ma)
As Amended August 2, 2010
Majority vote
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|ASSEMBLY: |78-0 |(May 11, 2009) |SENATE: |33-0 |(August 5, |
| | | | | |2010) |
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Original Committee Reference: JUD.
SUMMARY : Provides when children may address the family court
regarding custody or visitation. Specifically, this bill :
1)Requires 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, requires the court
to state its reasons for that finding on the record.
2)Provides 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
interests.
3)Requires the court to provide alternative means of obtaining
information regarding the child's input and other information
if the court precludes the calling of a child as a witness.
4)Provides 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. Further provides
that a party or party's attorney may also indicate to the
judge that the child wishes to address the court.
5)Provides that nothing in this bill shall be construed to
require a child to express his or her preference or provide
input to the court as to custody or visitation.
6)Requires the Judicial Council, no later than January 1, 2012,
to promulgate a rule of court establishing procedures for the
examination of a child witness.
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7)Provides that the provisions in #1 through #5 become operative
on January 1, 2012.
The Senate amendments make the changes described above.
EXISTING LAW requires a court to consider and give due weight to
the wishes of a child in making an order granting or modifying
custody, provided the child is of sufficient age and capacity to
reason so as to form an intelligent preference as to custody.
AS PASSED BY THE ASSEMBLY , this bill clarified that in a custody
case, the court must consider, and give due weight to, the
wishes of a child, who is of sufficient age and capacity to
reason so as to form an intelligent preference as to custody or
visitation, particularly if the health, safety or welfare of the
child is at issue.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: 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
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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. 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.
In order to better afford children with the opportunity to
directly address the court, this bill provides that if a 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 interests. In that
situation, the court would be required to make that finding on
the record.
Under the bill, children who are younger than 14 are not
automatically precluded from testifying; however, the court
would not have to make specific findings on the record should
they preclude them 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
requires 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 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, this bill requires 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,
are 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 requires 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
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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 requires 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. The changes in the bill become operative on
January 1, 2012, the same date the Judicial Council is required
to promulgate its rule of court.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0005378