Cal. R. 7.1016

As amended through September 20, 2024

Rule 7.1016 - [Effective 1/1/2025] Participation and testimony of wards in guardianship proceedings (Prob. Code, Section 1514(b)(1); Fam. Code, Section 3042)

(a) Definitions

As used in this rule:

(1) "Ward" includes a proposed ward.

(2) "Party," when referring to a ward, indicates a ward who has filed a petition or made a response or objection to a petition in a probate guardianship proceeding.

(b) Purpose and scope

(1) This rule applies to the participation and testimony of a ward in a hearing on:

(A) Appointment or removal of a guardian of the person, including appointment of a successor guardian;

(B) Parental visitation of a ward in a guardianship of the person; or

(C) Termination of a guardianship of the person.

(2) The court may, in its discretion, apply all or part of this rule to the participation and testimony of a ward in a hearing in a guardianship of the estate or a hearing in a guardianship of the person on a matter not described in (1).

(3) This rule does not require a ward to address the court or prohibit a ward from doing so.

(4) Rule 5.250 does not apply to probate guardianship proceedings.

(5) Nothing in this rule limits the application of Evidence Code sections 765(b) and 767(b) to the testimony of a minor in a guardianship proceeding.

(c)Determining whether a ward wishes to address the court or has changed their preference about addressing the court

(1) The following persons must inform the judicial officer if they are aware that a ward wishes to address the court:

(A) The ward's attorney or guardian ad litem;

(B) A court or county guardianship investigator;

(C) A child custody recommending counselor who provides recommendations to the judicial officer under Family Code section 3183; or

(D) An expert appointed by the court under Evidence Code section 730 to assist the court in the matter.

(2) A party to the proceeding or a party's attorney may inform the judicial officer that a ward wishes to address the court.

(3) In the absence of information indicating that a ward wishes to address the court, the judicial officer may inquire whether the ward wishes to do so.

(4) If a ward informs any of the persons specified in (1) that the ward has changed their preference about addressing the court, that person must, as soon as feasible, inform the parties or their attorneys, the ward's attorney or guardian ad litem, the court investigator, and the judicial officer of that change.

(d)Determining whether addressing the court is in a ward's best interest

(1) If a ward wishes to address the court, the judicial officer must consider whether permitting the ward to address the court is in the ward's best interest.

(2) If the ward is 12 years old or older, the judicial officer must permit the ward to address the court unless the court finds that addressing the court is not in the ward's best interest and states the reasons for that finding on the record.

(3) If the ward is younger than 12 years of age, the court may permit the ward to address the court if the court finds that addressing the court is appropriate and in the ward's best interest.

(4) In determining whether addressing the court is in the ward's best interest, the judicial officer should consider the following:

(A) Whether the ward is of sufficient age and capacity to form an intelligent preference as to the matter to be decided;

(B) Whether the ward is of sufficient age and capacity to understand the nature of testimony;

(C) Whether the ward may be at risk of emotional harm if permitted or denied the opportunity to address the court;

(D) Whether the ward may benefit from addressing the court;

(E) Whether the subjects about which the ward is anticipated to address the court are relevant to the court's decision;

(F) Whether appointment of an attorney or a guardian ad litem for the ward would be helpful to the determination or necessary to protect the ward's interests; and

(G) Whether any other factors weigh in favor of or against permitting the ward to address the court, taking into consideration the ward's desire to do so.

(e)Receiving testimony and other input from a ward

(1) Unless the court determines that permitting a ward to address the court in the presence of the parties would be in the ward's best interest and states the reasons for that finding on the record, the court must not permit the ward to address the court in the presence of the parties.

(2) In determining the best interest of the ward under (1), the court must consider whether addressing the court in the presence of the parties is likely to be detrimental to the ward.

(3) If the court does not permit the ward to address the court in the presence of the parties, the court must provide an alternative method for the ward to address the court so that the court can obtain input directly from the ward on the record. If a court reporter is not available, the court must provide other means to obtain the ward's input and make it available to the parties and their attorneys.

(4) In taking testimony from a ward, the court must exercise the special care required by Evidence Code sections 765(b) and 767(b) to the extent that those sections apply. In addition, if the ward is not represented by an attorney and the court does not appoint one, the court must inform the ward in an age-appropriate manner about the limits on the confidentiality of testimony and that the information provided to the court will be on the record and provided to the parties in the case.

(5) In listening to and inviting the ward's input, the court must allow but not require the ward to state a preference regarding the matter to be decided and should provide information in an age-appropriate manner about the process by which the court will make a decision.

(6) In any case in which a ward will testify, the court must consider appointing an attorney or a guardian ad litem for the ward. The ward's attorney or guardian ad litem must:

(A) Provide information to the ward in an age-appropriate manner about the limits on the confidentiality of testimony and indicate to the ward that the information provided to the court will be on the record and provided to the parties in the case;

(B) Provide information to the ward in an age-appropriate manner about the process by which the court will make a decision;

(C) If appropriate, provide the ward with an orientation to the courtroom or other place where the ward will testify; and

(D) Inform the parties and the court about the ward's desire to testify or otherwise provide input.

(7) If the court precludes a ward from testifying as a witness, the court must provide alternatives to testimony for obtaining information about the ward's preferences or other input. These alternatives may include:

(A) Participation of a court or county guardianship investigator in the case under Probate Code section 1513 or 1513.2;

(B) Appointment of a child custody evaluator or investigator under Evidence Code section 730;

(C) Appointment of an attorney or a guardian ad litem for the ward;

(D) Receipt of admissible evidence provided by the ward's parents, parties, or witnesses in the proceeding or other matter subject to this rule;

(E) Receipt of information from a child custody recommending counselor authorized under Family Code section 3183 to make a recommendation to the court; and

(F) Receipt of information from a child interview center or professional to avoid unnecessary multiple interviews.

(8) If the court precludes a ward from testifying as a witness and specifies an alternative to testimony, the court must require that the information obtained through that alternative and provided by a professional (other than an attorney for the ward or for a party) or other nonparty:

(A) Be documented in writing and fully reflect the views expressed by the ward on the matters to be decided;

(B) Describe the ward's input in sufficient detail to assist the court in making its decision;

(C) Be obtained and provided to the court and to the parties by a person who will be available for testimony and cross-examination; and

(D) Be filed in the confidential portion of the case file.

(f)Responsibilities of court-connected or appointed professionals

A child custody evaluator, an expert witness appointed under Evidence Code section 730, an investigator, or a child custody recommending counselor who is appointed or assigned to obtain information from a ward and provide the information to the court and the parties must:

(1) Inform the ward in an age-appropriate manner about the limits on the confidentiality of testimony and that information provided to the professional will be shared with the court on the record and provided to the parties in the case;

(2) Inform the ward in an age-appropriate manner about the process by which the court will make a decision;

(3) Allow but not require the ward to state a preference regarding the issues to be decided by the court; and

(4) Give the other parties information about how best to support the ward during the court process.

(g)Providing information and support

Courts should provide information to parties and information and support to a ward if the ward wants to participate or testify. Methods of providing information or support may include:

(1) Directing court or county guardianship investigators or experts appointed under Evidence Code section 730 to meet jointly or separately with the parties and their attorneys to discuss alternatives to having the ward provide direct testimony;

(2) Providing an orientation for the ward to the court process and the role of the judicial officer in making decisions, the setup of the courtroom or chambers where the ward will testify or address the court, and the process of participating or testifying;

(3) Providing information to parties before the ward participates or testifies so that they can consider the possible effect of participating or testifying on the ward;

(4) Appointing an attorney or a guardian ad litem for the ward to assist in the provision of information to the ward concerning his or her decision to participate or testify;

(5) Including information in guardianship orientation presentations and publications about the options available to a ward to participate or testify or not to do so, and the consequences of a ward's decision to become a party to the proceeding; and

(6) Providing an interpreter for the ward.

(h)If a ward is a party

(1) A ward who is a party is subject to the law of discovery applicable to parties in civil actions and may be called as a witness by any other party unless the court makes a finding that requiring the ward to respond to discovery requests or testify as a witness would not be in the ward's best interest and states the reasons for that finding on the record.

(2) The court must consider appointing an attorney or a guardian ad litem for a ward who is a party if the ward is not represented.

(3) In determining whether requiring a ward to respond to discovery requests or testify as a witness would be in the ward's best interest, the judicial officer should consider:

(A) Whether the ward may be at risk of emotional harm if required to respond to discovery requests or testify;

(B) Whether the subjects that the ward's responses or testimony are expected to address are relevant to the court's decision; and

(C) Whether any other factors weigh in favor of or against requiring the ward to respond to discovery requests or testify.

(i)Education and training

Education and training for court staff and judicial officers should include information on:

(1) A ward's participation in guardianship hearings;

(2) Methods other than direct testimony for a ward to give relevant information and input to the court;

(3) Procedures for taking a ward's testimony consistent with the safeguards in this rule, Family Code section 3042, and Evidence Code sections 765(b) and 767(b); and

(4) The differences in the application of this rule to wards who are parties and those who are not.

Cal. R. Ct. 7.1016

Rule 7.1016amended effective 1/1/2025; amended effective 9/1/2023; adopted effective 1/1/2013.