Teenagers And Their Choice – Family Code 3042

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 states when 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 (mandatory language) consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.

The law distinguishes between children who are 14 years or older and those under 14. Children 14 or older “shall” be permitted to testify unless the Court states on the record why it is not in the child’s best interest to testify. Children under 14 will be allowed to testify if the Court determines it is in the testifying child’s best interest. The difference is the older children are presumed to have the right to testify while the younger children are not.

This law is new and its impact is not yet known. Before this law, children were permitted to testify but it was the rare exception and not the rule. What you must know for your Orange County child custody case is whether the child who testifies will really communicate his or her own feelings or that of the parent who wants the child to testify.

Farzad Family Law’s approach to this new law is direct and honest – (1) why is the child asked to make the choice, (2) is the child’s choice in his or her best interest, (3) is the child expressing his or her own opinion or is the child being conditioned by the parent.

To help illustrate how effective representation in your Orange County custody case can make a difference, I will give you an example.

I recently had a divorce case where I represented the wife. The wife and husband had 4 sons and the three older sons wanted nothing to do with dad because of his history of abuse against them and my client during the marriage. But there was one child that remained and he was still young, only 11 years old, and I believed when I got the case that the father was engaging in serious emotional abuse of the child. This 11-year-old child insisted that he wanted to live with his father and not his mother. He was acting out, failing classes and was completely out of control.

At the time I took the case over, the wife and mother who became my client was distraught. The father had brought false domestic violence allegations against her and he and his lawyers were attempting to run rough-shot over her. Though he and his attorney fought against it, I successfully had a court appointed psychologist appointed. With our due diligence and knowing that we would show the father’s allegations as being false and further showing that this kid was being psychologically and emotionally abused, the court appointed psychologist (who is one of the best in the business) wrote a report that confirmed what our investigation showed.

The case went to trial. The abusive father and his lawyers fought like hell against the report and the facts but the judge had none of their nonsense. Father lost all custody and visitation and his time with the child was limited to less than 1 percent. He was ordered into counseling. The child’s life slowly became restored to normal and, being away from the abusive parent, the child’s grades started to show steady improvement and still do today. He now lives a normal life, he has re-gained the loving relationship with his mother and three older brothers and he can finally focus on living the life of a normal kid. For our efforts, the judge also ordered $60,000.00 in attorney fees against the father.

That case is an example of why a child’s “preference” is not always based on his or her best interest. If a lazy lawyer representing mom would have simply shrugged his or her shoulder and said “oh well, the boy wants to live with dad,” that kid we saved would still be abused today.

Sometimes, what a teenager says he or she prefers should be exactly what happens. We have represented parents and successfully achieved results consistent with child’s preference. Sometimes, there is more to the story than what the child simply states.

Call or email us about your Orange County child custody case. Let’s find solutions together.

Warmest Regards,

B. Robert Farzad
FARZAD FAMILY LAW, APC
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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