Child custody in divorce cases can sometimes be hotly contested. Traditionally, courts have made decisions based on the information presented by the parties and their lawyers. The wishes of the children were either not expressed or expressed only through the parents. Since 2012, however, children are permitted to testify regarding custody and visitation arrangements if they so wish.
California Family Code § 3042 provides that if a child is of “sufficient age and capacity to reason,” her wishes will be given due weight. The law makes a distinction between children less than 14 years of age and those 14 or over. If 14 or older, the court is required to permit testimony if the child wishes unless it determines that it is not in the best interest of the child to allow the testimony. Children under 14 are not prevented from testifying, but the court must find both that the child has the capacity to reason and that the opportunity to testify is in her best interest.
Some parents may be concerned about the opportunity for their children to weigh in on the custody and visitation arrangements of their divorce. The court, however, has both guidelines for hearing from a child and discretion in applying those guidelines.
California Rules of Court 5.250 provides instruction for the court for: 1) determining whether the child wishes to address the court, 2) determining whether addressing the court is in the child’s best interest, and 3) receiving the child’s testimony and other input.
The parties to a divorce or their counsel may inform the court of a child’s desire to address the court. In addition, the following persons have a duty to inform the court of a child’s desire to testify:
- Counsel appointed to represent the child;
- A child custody evaluator;
- A child custody investigator; and
- A child custody recommending counselor.
To determine whether it is in the child’s best interest to testify, the court must consider the following factors:
- Whether the child is of sufficient age and capacity to reason;
- Whether the child is of sufficient age and capacity to understand the nature of the testimony;
- Whether the child is at risk emotionally if permitted or denied the opportunity to address the court;
- Whether the child may benefit from addressing the court;
- Whether the child’s anticipated testimony will be relevant to the court’s decisionmaking; and
- Whether there are any other factors weighing for or against the child addressing the court.
The court has wide discretion in facilitating the child’s testimony. It can occur in open court as a regular witness, or the courtroom may be closed to the public. It might also be conducted in the judge’s chambers with or without the parties and counsel present. The judge is also empowered to reserve to himself the posing of questions on behalf of the parties. The purpose of these guidelines and the wide discretion granted is to ensure the comfort of the child and, thus, the value of the testimony proffered.
The health and well-being of your children are important not only to you, but to the State of California. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at The Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.