New Law Allows Children To Testify More Freely In California Child Custody Cases

Before January 1, 2012, children were permitted to testify in Court on divorce and family law cases in California but only based on strict guidelines. Starting January 1, 2012, the law has become more liberal and now allows parents more freedom to allow their children to testify when there is a “preference” to live with one parent over another.

The new law is California Family Code 3042. It reads:

(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 interests of the child.

(c) If the child is 14 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 interests. In that case, the court shall state its reasons for that finding on the record.

(d) 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.

(e) If the court precludes the calling of any 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 his or her 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) Nothing in this section shall be construed to require the child to express to the court his or her 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.

This law can have both a positive and negative impact.

While children should preferably not be placed in the middle of custody disputes between parents, there are instances when a child’s testimony is necessary because that child can shed light on issues of abuse and neglect to him or her as well as domestic violence between the parents. In such situations, children should not be placed with an abusive parent, even if the abuse is not physical but is psychological or emotional. A child who is 14 years or older can help the court understand what really is going on inside the household because, often, child abuse because a “he said” versus “she said” between parents and it’s difficult to reconcile who is telling the truth.

The same is true about situations where a parent wants custody but not to actually spend time with the children but rather to reduce his or her child support or increase the other parent’s child support. Custody and visitation isn’t intended as leverage against the other parent but as a means to give the child frequent and regular contact with both parents. If one parent isn’t spending time with the child, that child can let the Court know that and custody and visitation can be changed as a result.

The downside to this law comes into play in situations where a child has been alienated from one parent. It’s unfortunately far too common for a mother or father to influence a child through guilt, lies or emotional abuse and pit the child against the other parent. This happens most frequently when a parent convinces the child or children that the other parent was “at fault” for the divorce and left the family. In such situations, a child testifying doesn’t really express his or her true feelings. Rather, the child expresses the negative emotions of the parent who did the alienating.

At Farzad Family Law we deal with custody issues on a daily basis. We have seen it all. There are circumstances when a child’s testimony is necessary and other situations where an investigation or evaluation must come first to find out if the child is likely to tell the truth or just become one parent’s weapon against the other. We have had great success for our clients in protecting the children from bad parents. Part of that is because we only represent good parents, those who are well-meaning and are child centered. Another part of that is that we are diligent in our investigation and evaluation of your Orange County child custody case and issues before we ever step into court.

Call or email us today to discuss your Orange County child custody case. Good parents rely on us to help them and their children get through this most difficult time in their life. You should too. We’ll help you get through it and protect the most precious assets you have in your life – your children.

Warmest Regards,

B. Robert Farzad
Orange County Divorce & Family Law Attorneys
1851 E. 1st Street, Suite 1150
Santa Ana, CA 92705
Telephone: (714) 937-1193
Facsimile: (714) 937-1192

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