Divorces and separations are complex legal issues involving many moving parts — property division, alimony, custody arrangements, and more. The difficult process of figuring these things out will affect many people beyond the separating couple— family members, friends and even employers. And while we often think about how difficult separation is for children, many are surprised to hear that under California law, children can have a say when it comes to which parent they prefer to live with. Lawyers call it a child’s preference.
While child preference has had some sway in custody cases for years, it became law following the 2010 passage of Assembly Bill 1050. The legal manifestation of this bill is now part of California’s Family Code § 3042. This law, along with California’s Rules of Court, provides guidelines as to when and how a child can testify before the court in order to express his or her preference about parental custody and visitation.
Many folks who are going through a custody hearing understandably have questions when it comes to the issue of their child testifying in court. Is my child too young to testify? Will my child be traumatized? What if my former spouse tries to manipulate the child’s testimony? These are all good questions every caring parent should ask. Thankfully, the law takes these questions into consideration and gives judges and judicial officers discretion when it comes to deciding when and how a child testifies in a custody matter.
Continue reading to learn more about what power a child has to choose when parents discuss the issue of custody.
What CA Family Law Says About Child Preference
Section 3042 (a) of the family code states that if a child is of sufficient age and capacity to reason, and is capable of forming an intelligent preference concerning 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.”
The law specifies that children over 14 must be permitted to address the court on the issue of custody unless the court determines it is not in the child’s best interests. In cases involving children under 14, the judge must first determine whether testifying is in the child’s best interests before allowing him or her to address the court.
Subsection (d) of the law states that
“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 is appropriate pursuant to the child’s best interests.”
In cases where it is determined that it’s not in the best interests of the child to testify, the court must provide alternative means of obtaining input from the child regarding his or her preferences. It’s important to remember that nothing in the law requires a child to testify about his or her preference for custody.
Are There Guidelines For How A Child Addresses the Court?
Yes. These are outlined in the California Rules of Court 5.250. These guidelines provide the rules for how a child comes to testify in a custody hearing as well as how the court should decide if such an allowance is in a child’s best interest. The process begins by first determining if a child wishes to address the court.
Who Can Request that a Child Testify in a Custody Hearing?
In order to determine if a child wants to testify in a custody hearing, one of the following people must inform the court of the child’s wishes:
- The child’s attorney
- An Evaluator
- An Investigator
- One of the child’s parents
- One of the parents’ attorneys
You might be asking, what does an evaluator or investigator have to do with a custody case? There are instances in which a judge assigns an evaluator or investigator who will be charged with interviewing the child to gauge his or her preference in custody.
When this type of investigation is conducted, a report will be prepared and returned to the court. Such a report will describe the child’s preference in sufficient detail to assist the court in making its decision regarding custody and visitation. A copy of the report will be provided to both parents, and a copy will also be placed in the confidential portion of the court file.
Determining a Child’s Best Interest
There are a number of factors a judge will consider when determining a child’s best interest, including the following:
- Is the child able to form an intelligent preference regarding custody?
- Is there a risk of emotional damage if the child is permitted or denied an opportunity to address the court?
- Will the child benefit from addressing the court?
If it’s decided that the child will be allowed to testify, the judge will consider who will be present in the courtroom during the testimony in an effort to create an environment “in which the child can be open and honest.”
In some cases, the judge might close the courtroom to the public. The judge might also hear from the child in chambers on the record. This means that a court reporter will either be present for the testimony or given access to a listening device so that the discussion in chambers can be recorded from outside the room.
The judge will also decide who will be allowed to question the child. It might be that the judge will be the only person to ask questions, or attorneys might be allowed to examine and cross-examine the witness. In some cases, a child advocate or child development expert might be allowed to ask questions. It depends on the child and the specifics of the case under consideration.
The rules of the court clearly state:
“In taking testimony from a child, the court must take special care to protect the child from harassment or embarrassment and to restrict the unnecessary repetition of questions.”
If The Child’s Testimony is Not Allowed
If a judge decides that it is not in the best interest of a child to be called as a witness, the court might still allow the child to participate in the proceedings in other ways. Such ways could include:
- Participation in child custody mediation (less formal than a court proceeding)
- Talking to a court appointed child custody evaluator, or investigator
What About a Parent Who Tries To Manipulate the Child’s Testimony?
Sadly, there is no shortage of parents who view a custody hearing as an opportunity to manipulate and psychologically torture a former spouse or significant other. These cruel people, sometimes narcissists, don’t take the best interests of the child into consideration, viewing youngsters instead as pawns.
Perhaps a parent has been distant from his or her family throughout a marriage or relationship, then suddenly decides to be a constant presence in a child’s life. This often has more to do with getting back at a spouse or personal pride.
In some cases, these selfish people might try to seek sole custody. Such manipulators aren’t above trying to influence, intimidate or coerce the child’s testimony, knowing that it will cause the other parent distress. In other situations one parent should have sole custody because the other spouse is abusive.
In these cases, it is important that the other parent communicate with their attorney in order to ensure that a proper review is done prior to the child testifying. If you are engaged or will be engaged in a custody hearing, be sure you have a qualified attorney on your side.
Do I Need An Attorney?
Parents who are involved in, or believe they will become involved in a custody dispute, should hire an attorney. A child’s preference is very important. Child custody hearings, perhaps more than any other type of family law case, can be highly emotional affairs. People make mistakes when they don’t have the guidance and wisdom of a level-headed professional next to them.
The court system is full of horror stories involving manipulative former spouses, incompetent lawyers, and even judges making decisions that seriously affect the well being of families and children.
An extreme example of how chaotic a child custody issue can become was detailed in a Huffington Post article in 2012. The story involved a divorced couple that had a four-year old son together. The couple had gone through an amicable, no fault divorce. Following the separation, the couple agreed the child should live with his mother.
The father remarried and moved across the country. But after a summer visit, in which the child spent six week’s out of state with his father, the mother was served with papers indicating her ex husband was suing for custody of the child.
Had the mother originally consulted a good attorney at the time of separation, she might have been advised that a custody order was a good idea. Such an order would have required any custody dispute to be settled in the state where the child originally resided.
Instead, the mother was forced to take time off from work to fly out of state and fight for the custody of her child. Unfortunately, the lawyer she chose failed to request that the case be dismissed, and the struggle for custody went on for many months—requiring multiple airplane flights out of state, time taken off from work and tens of thousands of dollars in legal fees. Ultimately, the woman lost custody of her son.
While this is an extreme case that most people won’t have to endure, it illustrates the value of having a good lawyer from the get go. In many cases, a good lawyer will save a person money in the long run. If you have questions about child custody, or any other family law issue, contact our office to see how we can help.