Child Witnesses for Custody and Visitation - Recent Changes
Posted on Sat, Feb 04, 2012 @ 11:50 AM
I would like to start this article by thanking Mr. Garrett Dailey of Attorney Briefcase for the very informative presentation he gave recently to the San Mateo Bar Association Family Law Section about the recent changes to the California Family Code regarding children appearing as witnesses in family law disputes.
Effective January 1, 2012, when children reach the age of fourteen, if they desire to address the court regarding custody or visitation, California courts are required to permit them to do so, unless the court determines that doing so is not in that particular child's best interests. And, in those cases the court must now state its reasons for that finding on the record.
The amended statute can be found here:
The amended statute is not a mandate that the court permit each and every teenager over the age of fourteen to address the court. In fact, judges are not supposed to ask to speak to the child. Instead, the court must wait for a child’s attorney, an evaluator, an investigator, a mediator, or one of the parties to tell the court that the child wants to be heard. (Fam. Code, § 3042, subd. (f).) Once this desire is made known, then the court must decide whether or not it is appropriate or in the child’s best interests to hear his or her testimony.
The guidelines for determining whether addressing the court is in a child’s best interests are as follows:1) whether the child is of sufficient age and capacity to reason to form an intelligent preference as to custody or visitation (parenting time); 2) whether the child is of sufficient age and capacity to understand the nature of testimony, i.e. the obligation to tell the truth; 3) whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court; 4) whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision-making process; and 5) whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so. (Cal. Rules of Court, rule 5.250.)
To take a concrete example, the court may determine that a 14-year old who wants to live primarily with her mother because she has a curfew at father's house is not of sufficient age and capacity to reason to form an intelligent preference as to custody within the meaning of the statute. It should also be noted that children under the age of 14 are also permitted to address the court regarding custody and visitation issues, as long as “the court determines that it is appropriate pursuant to the child’s best interests.” (Fam. Code, § 3042, subd. (d).)
Once the court has decided to hear testimony from a child, it is allowed great latitude in determining the manner in which the testimony is taken. In the majority of cases, it would be traumatic for a child to testify in a public courtroom in front of both parents and strangers. If the court concludes that it is not in the best interests of a child to testify in court, the new law requires the court to provide alternative means of obtaining the information from the child, such as requiring the child to participate in child custody mediation or the appointment of an evaluator. (Cal. Rules of Court., Rule 5.250(d).)
While the court is required to give “due weight” to the child’s wishes, it is not required to follow the preferences of the child when fashioning its custody order. In other words, just because a child wants to live primarily with a particular parent, does not necessarily mean that the court is going to order this. Rather, the determination will be based on an analysis of that particular child’s best interests.