Bill Text: CA AB2098 | 2015-2016 | Regular Session | Amended

California Assembly Bill 2098 (Prior Session Legislation)

CA State Legislature page for AB2098

Bill Title: Child custody: preferences of child.

Spectrum: Slight Partisan Bill (Republican 6-2)

Status: (Failed) 2016-11-30 - From committee without further action. [AB2098 Detail]

Download: California-2015-AB2098-Amended.html

BILL NUMBER: AB 2098	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 28, 2016

INTRODUCED BY   Assembly Member Maienschein
   (Principal coauthor: Senator Anderson)
   (  Coauthor:   Assembly Member 
 Waldron   Coauthors:   Assembly
Members   Baker   and Waldron  )
   (Coauthors: Senators  Bates,  Beall, Cannella, and
Fuller)

                        FEBRUARY 17, 2016

   An act to  amend   amend, repeal, and add
 Section 3042 of the Family Code, relating to child custody.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2098, as amended, Maienschein. Child custody: preferences of
child.
    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
child's 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 child's 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-appropria   te
form. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 3042 of the   Family
Code   is amended to read: 
   3042.  (a) 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.

   (b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
a child witness so as to protect the best interests of the child.
   (c) 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 state
its reasons for that finding on the record.
   (d) 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  it
 is appropriate pursuant to the child's best interests. 
   (e) No later than July 1, 2017, the Judicial Council shall develop
an age-appropriate form that explains to a child who elects to
address the court regarding custody and visitation all of the
following:  
   (1) The process of addressing the court.  
   (2) The opportunity to address the court should only be sought if
the child voluntarily chooses to do so.  
   (3) Possible reasons why a child may or may not want to address
the court.  
   (4) 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.  
   (e) 
    (   f)  If the court precludes the calling of
any child as a witness, the court shall provide alternative means of
obtaining input from the child and other information regarding the
child's preferences. 
   (f) 
    (   g)  To assist the court in determining
whether the child wishes to express his or her preference or to
provide other input regarding 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 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. 
   (g) 
    (   h)  Nothing in this section shall be
construed to require the child to express to the court his or her
preference or to provide other input regarding custody or visitation.

   (h) 
    (   i)  The Judicial Council shall, no later
than January 1, 2012, 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 or other input from the child regarding custody or
visitation. 
   (i) The changes made to subdivisions (a) to (g), inclusive, by the
act adding this subdivision shall become operative on January 1,
2012.  
   (j) This section shall become inoperative on July 1, 2017, and, as
of January 1, 2018, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2018, deletes or
extends the dates on which it becomes inoperative and is repealed.

   SEC. 2.    Section 3042 is added to the  
Family Code   , to read:  
   3042.  (a) 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.

   (b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
a child witness so as to protect the best interests of the child.
   (c) If the child is 10 years of age or older and wishes, of his or
her own volition, 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 state its reasons for that finding on the
record.
   (d) Nothing in this section shall be interpreted to prevent a
child who is less than 10 years of age from addressing the court
regarding custody or visitation, if the court determines that it is
appropriate pursuant to the child's best interests.
   (e) Prior to the child addressing the court regarding custody or
visitation, the court shall determine whether the child is addressing
the court of his or her own volition and shall provide the child
with an age-appropriate form developed by the Judicial Council that
explains to the child all of the following:
   (A) The process of addressing the court.
   (B) The opportunity to address the court should only be sought if
the child voluntarily chooses to do so.
   (C) Possible reasons why a child may or may not want to address
the court.
   (D) 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.
   (f) If the court precludes the calling of any child as a witness,
the court shall provide alternative means of obtaining input from the
child and other information regarding the child's preferences.
   (g) To assist the court in determining whether the child wishes to
express his or her preference or to provide other input regarding
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 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.
   (h) Nothing in this section shall be construed to require the
child to express to the court his or her preference or to provide
other input regarding custody or visitation.
   (i) The Judicial Council shall 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 or other input from the child regarding custody
or visitation.
   (j) This section shall become operative on July 1, 2017. 

  SECTION 1.    Section 3042 of the Family Code is
amended to read:
   3042.  (a) 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.

   (b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
a child witness so as to protect the best interests of the child.
   (c) If the child is seven 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 state
its reasons for that finding on the record.
   (d) Nothing in this section shall be interpreted to prevent a
child who is less than seven years of age from addressing the court
regarding custody or visitation, if the court determines that is
appropriate pursuant to the child's best interests.
   (e) If the court precludes the calling of any child as a witness,
the court shall provide alternative means of obtaining input from the
child and other information regarding the child's preferences.
   (f) To assist the court in determining whether the child wishes to
express his or her preference or to provide other input regarding
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 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.
   (g) Nothing in this section shall be construed to require the
child to express to the court his or her preference or to provide
other input regarding custody or visitation.
   (h) The Judicial Council shall, no later than January 1, 2012,
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 or other input
from the child regarding custody or visitation.
   (i) The changes made to subdivisions (a) to (g), inclusive, by the
act adding this subdivision shall become operative on January 1,
2012.