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SB-654 Child custody: preferences of the child.(2021-2022)

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Date Published: 02/19/2021 02:00 PM
SB654:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 654

Introduced by Senator Min
(Coauthor: Senator Rubio)

February 19, 2021

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


LEGISLATIVE COUNSEL'S DIGEST


SB 654, as introduced, Min. Child custody: preferences of the child.
Existing law requires the 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 reason so as to form an intelligent preference as to custody or visitation. If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, existing law requires the court to permit the child to address the court, unless the court determines that doing so is not in the child’s best interests.
This bill would instead require the court to permit a child who is 12 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. The bill would require the Judicial Council, on or before July 1, 2022, to create a form to be filed with the court to certify that a child has been informed of their right to testify, as specified. The bill would require, among other things, a child custody evaluator, investigator, mediator, or other court-connected professional to inform the child of their right to address the court if the child is interviewed by the child custody evaluator, investigator, mediator, or other court-connected professional. By imposing additional duties on local officials, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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 interest of the child.
(c) If the child is 14 12 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 interest, in which case, the court shall state its reasons for that finding on the record.
(d) This section does not prevent a child who is less than 14 12 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.
(e) If the court precludes the calling of a 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 a 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) This section does not require the child to express to the court a 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.
(j) (1) (A) The Judicial Council shall create a form to be filed with the court, attested to by a person specified in subdivision (f), certifying that a child who is 12 years of age or older, as required pursuant to subdivision (c), has been informed of their right to testify directly to the court or provide input pursuant to this section and that any input the child wishes to provide to the court has been obtained pursuant to this section and Rule 5.250 of the California Rules of Court.
(B) The Judicial Council shall develop a form necessary to effectuate subparagraph (A) on or before July 1, 2022.
(2) (A) Prior to any hearing on custody and visitation, all children 12 years of age or older whose parents or guardians have a case in family court shall be informed of their right to give input to the court.
(B) If the court determines that it is appropriate pursuant to the best interest of a child under 12 years of age to address the court regarding custody or visitation, the child shall be informed by the parties in age-appropriate language that they have a right to provide input and information regarding their preferences for custody or visitation, if the child wishes.
(3) If the child who wishes to give input does not wish to speak to the court directly, arrangements shall be made for alternate methods of providing input and information.
(4) If a child is interviewed by a child custody evaluator, investigator, mediator, or other court-connected professional, the child shall immediately be informed of the child’s right to address the court by the child custody evaluator, investigator, mediator, or other court-connected professional.
(5) If the child wishes to be heard, the court shall schedule a hearing within a reasonable time after receipt of the notification or information that the child wishes to provide input.
(6) The court shall not make a final decision on custody or visitation without documentation in the record, as specified in paragraph (1), demonstrating that the child has been informed pursuant to this subdivision, any input the child wishes to give has been obtained in accordance with this section, and, if relevant, the hearing described in paragraph (5) has occurred.
(7) If the child wishes to have their testimony and preference remain private because of physical or sexual safety or concerns of retaliation, the court shall ensure the child is safe and is not retaliated against.
(A) If the child has disclosed to any governmental entity, including the court or a mandated reporter, that a parent or household member has physically or sexually abused, assaulted, or battered them or any family member, or there is corroborating evidence of abuse, the court shall give strong weight to the child’s preference for custody or visitation when that preference provides safety for the child.
(B) If, in addressing the court in any form pursuant to Rule 5.250 of the California Rules of Court, a child alleges or reports in any manner that they have been assaulted, battered, or sexually abused by a party who has or is seeking custody, or that they fear they will be retaliated against for their statements to the court, the court shall take immediate action to ensure the child’s safety, including issuing emergency orders if needed.
(C) A child 12 years of age or older who reports to the court that they have been battered, assaulted, or sexually abused by a person who has or is seeking unsupervised custody shall be informed of their right to request a restraining order and shall be provided information on how to access the restraining order process, including a referral to a domestic violence advocate for assistance in filing the restraining order.
(D) If a child reports to the court, in any manner, that they have been assaulted, battered, or sexually abused by a parent who has or is seeking unsupervised custody, the court shall state the reasons on the record why the court believes the child will be safe in the unsupervised custody, visitation, or contact with that parent, prior to ordering the child into unsupervised custody, visitation, or contact with that parent.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.