Existing law requires the court to consider and give due weight to the wishes of a 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. Existing law also 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 childs best interests.

This bill bill, commencing July 1, 2017, would instead require the court to permit a child who is 7 10 years of age or older older, of his or her own volition, to address the court regarding custody or visitation, unless the court determines that doing so is not in the childs best interests. The bill would require the court to determine whether the child is addressing the court of his or her own volition and to provide the child with an age-appropriate form developed by the Judicial Council that explains to the child specified information prior to the child addressing the court regarding custody or visitation. The bill, commencing January 1, 2017, would require the Judicial Council, no later than July 1, 2017, to develop this age-appropriate form.

Existing law requires the court to consider and give due weight to the wishes of a 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. Existing law also 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 childs best interests.

This bill would instead require the court to permit a child who is 7 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 interests.

Date of Hearing: April 20, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2098

Author:(Maienschein) – As Amended Ver:March 28, 2016

Urgency: No State Mandated Local Program: No Reimbursable: 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 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 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. 

1. 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, 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.

1. Arguments in Support. California Protective Parents 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."

1. 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 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."  

1. 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.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2098

Author:(Maienschein) – As Amended Ver:March 28, 2016

SUBJECT: CHILD CUSTODY: CHILD PREFERENCES

KEY ISSUE: SHOULD THE age at which the PRESUMPTION THAT CHILDREN WHO CHOOSE TO TESTIFY IN THEIR CHILD CUSTODY PROCEEDING may do so BE LOWERED from 14 years to 10 years AND SHOULD such children BE PROVIDED WITH AN INFORMATION SHEET EXPLAINING THAT THEIR TESTIMONY IS COMPLETELY VOLUNTARY?

SYNOPSIS

Children's lives are directly impacted by their parents' child custody and visitation cases. Despite being directly impacted by these decisions, children are not parties to these cases, are generally not represented by counsel and are not always permitted to address the court. In response to concerns that children’s wishes were being shut out of the family law process, the Legislature in 2010 created a presumption that youth 14 and over could, if they choose, testify in their custody or visitation proceedings, unless the court determined that doing so was not in their best interest. This bill, sponsored by the California Protective Parents Association, lowers that presumed age to 10 years. However, to address concerns that children that young may not be testifying voluntarily, but instead could be pushed to do so by their parents, this bill requires that before a child can testify, the child must be educated about the importance of testifying voluntarily and also that the court determine that the child is indeed testifying voluntarily.

In support of the bill, 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 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 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 (although it is important to note that this bill will not allow children to make those decisions – only courts can do that).

SUMMARY: 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 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.

EXISTING LAW:

1. 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. (Family Code Section 3042. Unless stated otherwise, all further references are to that code.)
2. 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. Provides that this shall not 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, and provides that this shall not be construed to require a child to express his or her preference or provide input to the court as to custody or visitation. 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. (Id.)
3. 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. (Id.)

FISCAL EFFECT: Unknown

COMMENTS: By the very nature of the child custody and visitation proceedings, children are directly impacted by the decisions in these cases, and that impact can be life altering. Despite being directly impacted by these decisions, children are not parties to these cases, are generally not represented by counsel and are not always permitted to address the court. In response to concerns that children’s wishes were being shut out of family law proceedings, the Legislature in 2010 created a presumption that youth 14 and over could, if they choose, testify in their custody or visitation proceedings, unless the court determined that doing so was not in their best interest. This bill lowers that presumed age to 10. However, to address concerns that children that young may not be testifying voluntarily, but instead could be pushed to do so by their parents, this bill requires that the court first determine that the child is testifying voluntarily and that the child first be educated about the importance of testifying only if that is what the child wants.

In support of the bill, the author writes:

Since Family Code section 3042 was amended six years ago, children age 14 or older who wish to address the court regarding custody or visitation are permitted to do so. The process has been successful, empowering children to state their wishes and in some cases to ensure their physical and sexual safety.

There continues to be an ongoing problem of children who allege abuse being taken from safe parents and placed in unsupervised contact or full custody of dangerous parents by family/ divorce courts. This occurs often in domestic violence cases. Witnessing domestic violence is highly detrimental to children. Children are exceedingly unlikely to fabricate abuse perpetrated against themselves.

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. 

Weighing whether children should be able to testify directly in their custody and visitation proceedings. 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. (Family Code Section 3042.) 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 complexity of these issues is compounded by the fact that parents in family law proceedings, unlike those in dependency proceedings, still retain their decision-making authority, and their children are not parties to the case. Indeed, the Elkins Family Law Task Force, which completed a comprehensive review of family courts in 2010, 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. (Judicial Council, Elkins Family Law Task Force: Final Report and Recommendations 50-51 (April 2010).)

Legislature created a presumption that children 14 and over, who so desire, should be able to address the court in their child custody proceedings. Weighing these various considerations, the Legislature opted, with AB 1050 (Ma), Chap. 187, Stats. 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.

While AB 1050 was not opposed, at the time, various family law practitioners raised many of the same concerns being raised about this bill. However, since that bill became effective, this Committee has not heard of any concerns with children testifying in court; and, it appears, opponents’ fears have not materialized. Thus, it appears that courts are screening children before they testify and appropriately applying the presumption to ensure that children do not testify when it is not in their best interest to do so.

This bill lowers the presumed age to 10, but also requires that children receive more information about the process and that courts ensure that they are testifying voluntarily. This bill lowers the age by when children are presumed to be able to testify from 14 to 10 years of age. However, this bill retains the same presumption -- so that if a judge finds that it is not in the child's best interest to testify, the court must disallow the child’s testimony. Given the enhanced risk that younger children are more susceptible to pressure from a parent and may be pushed to testify even when they do not wish to do so, this bill creates two additional protections. First, it requires the court to provide the child, before the child testifies, with an age-appropriate information sheet that explains the process and explains that the child should only testify if he or she voluntarily chooses, gives the reasons a child may or may not want to testify and gives alternative means of providing the court with the child's input should the child choose not to testify. Judicial Council is required to develop this form. Second, the bill mandates that the judge determine, again before the child testifies, that the child is doing so voluntarily. If the child does not appear to the judge to be testifying voluntarily, the judge should disallow the testimony. This should help ensure that even younger children are testifying because they want to, not because of parental pressure.

It should be noted that nothing in this bill or in current law 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 underscores why judicial discretion is a critical component of ensuring the process is tailored to the child’s best interest.

Dependent youth who are 10 and older are permitted to participate, and address the court, in their dependency proceedings. While not completely similar, children’s enhanced participatory role in their dependency cases is relevant to the discussion here. Family law cases can impact children almost as much as dependency cases. The dependency court, like the family court, gets to decide where they live and with whom they live. However, unlike the family court proceedings generally, the dependency court can also decide whether to terminate parental rights and begin adoption proceedings. And unlike family court, children are parties to their dependency case and represented by counsel. In family court, children are not parties and are rarely represented by minor's counsel.

Studies have shown that there are many advantages to youth participation at dependency hearings: “Attending court benefits both the youth and the court. Youth have the opportunity to understand the process by seeing firsthand the court proceedings. They also develop a sense of control over the process when they actively participate. The court learns more about children than simply what is presented in reports.” (Andrea Khoury, Seen and Heard: Involving Children in Dependency Court, 25 ABA Child Law Practice Vol. 10, p. 150 (Dec. 2006).)

Understanding the importance of having children participate in their dependency proceedings, California law provides children 10 and over with notice of their dependency hearings and allows them to attend and participate in those hearings and address the court. (Welfare & Institutions Code Sections 290.1-295, 349.) If a child who is 10 or older is not present at the hearing, the court is required to determine whether the child was properly notified of his or her right to attend the hearing, and the court may continue the hearing to allow the child to be present, unless the court determines that it is not in the best interest of the child. (Welfare & Institutions Code Section 349.)

Again, dependency and family court are not the same and different rules govern the different courts. However, the impacts for children can be similar. This bill simply says that a child 10 or older who wants to testify should be able to do so, unless the court funds that is not in their best interest. This does not make the child a party to the litigation, but may provide the court with valuable information that it would not otherwise have.

Bill’s backers argue that the Hague Convention provides support for bill. In support of the bill, the sponsors point to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), which specifically allows a court to refuse “to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” (The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11, 670, reprinted at 19 I.L.M. 1501, Section 13; 22 U.S.C. Section 9001 et al.) The Hague Convention does not specify what it considers to be an appropriate age. Some California courts have found under that Hague Convention standard that children as young as 8 can testify, but other courts have found that even older children could not testify, based on the specifics of those children. (See, e.g., Escobar v. Flores (2010) 183 Cal.App.4^th 737, 747-751.) The Hague Convention requires a case-by-case consideration of the age and maturity of the child, which is precisely what the first part of the statute being amended by this bill already provides: “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” (Section 3042 (a).) Thus, while the Hague Convention is informative, it does not, by itself, lend support to this bill, but simply makes clear that each child's request must be carefully considered by the court.

ARGUMENTS IN SUPPORT: California Protective Parents 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.

The Center for Judicial Excellence writes that its organization has dealt with "innumerable cases involving children whose safety was and is being ignored by family courts, whose childhoods were destroyed, and whose voices were silenced or distorted by a bevy of intermediaries charged with ascertaining 'facts' for the courts. These intermediaries include but are not limited to overworked, undertrained family court services mediators (child custody recommending counselors), as well as highly paid court appointees who supposedly have these children’s “best interests” at heart (i.e., minor’s counsel, reunification therapists, custody evaluators, special masters, etc.). Encouraging direct communication between a judge or commissioner and the child whose life and safety rests in his or her hands is a vital access-to-justice issue, particularly for the many California children who report physical or sexual abuse by a parent."

Talk About Abuse to Liberate Kids succinctly states: "We need to give these children direct access to the Judge and a chance to have their voice heard."

ARGUMENTS IN OPPOSITION: The California Psychological Association objects to the bill, believing it unnecessary and not in children's best interests:

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.  

The Association of Certified Family Law Specialists opposes the bill as introduced (which lowered the presumed age to 7, and did not require either the information sheet or the judicial determination of voluntariness that are included in the latest amendments to the bill), arguing that a young child is simply too young to participate in the hearing:

A seven year old child, who will typically be unrepresented at the hearing, does not have the emotional stamina to stand up to the pressure that one or both of their parents typically place on a child in these high conflict cases. It is important to keep young children out of the parental controversy or they become parentified and emotionally embroiled in their parents' litigation which only emotionally harms them. In addition, a child of this age would be more likely to be susceptible to retaliation from one of the parents for the adverse testimony that is provided. This change could be very detrimental to the child.

The Association of Family and Conciliation Courts also opposes the previous version of the bill, arguing that the bill is "totally unnecessary" and that it can have a "real impact on the children involved." The group adds:

Most people have no real understanding of how traumatic parental conflict can be for a child of any age. The trauma is multiplied a hundredfold when the child is pulled into the center of that conflict by one or both parents. . . . What can be surprising is that a child may reject a parent with whom that child has a safe and unconditional loving relationship, knowing that parent will continue to love them, and picking the less stable parent-child relationship in an attempt to either prove their love to one whose love is "conditional" or feel the need to protect the less emotionally stable parent with less adequate parenting ability and becoming, in effect, the parent in the relationship.

REGISTERED SUPPORT / OPPOSITION:

Support

California Protective Parents Association (sponsor)

Center for Judicial Excellence

Incest Survivors’ Speakers Bureau of California

Mothers of Lost Children

Talk About Abuse to Liberate Kids

Opposition

Association of Certified Family Law Specialists

Association of Family and Conciliation Courts

California Psychological Association

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334