Child Testimony Concerning Parental Preference
AB 1090, sponsored by Assemblywoman Fiona Ma, becomes law on January 1, 2011 as
revised Family Code section 3042. It directs courts to allow children age 14 or over to testify about their
custody preferences except where judges make findings on the record why
they will not permit it beginning January 1, 2012. The legislation also
directs the California Judicial Council to develop policies and procedures
for examining child witnesses in the meantime.
Is section 3042 a good idea? On balance I strongly doubt it. The likelihood
of misusing this new license, given how we humans tend to behave when
we are steeped in relationship conflict, will for many parents be just
too powerful a force to avoid. Parents will feel invited to have discussions
that were previously considered inappropriate under the guise of fulfilling
a perceived legislative mandate to inquire into childhood preferences.
And it won't stop with "Johnny, who would you rather live with,
your mom or me" but will inevitably expand into questions about what
underlies Johnny's preferences. California is theoretically a no-fault
state at least in terms of grounds for dissovling marriage, but fault
has always lurked beneath the surface in custody contests. Newly enacted
section 3042 takes this to a new, much messier level that potentially
assaults children directly as potential co-conspirators with parents who
have no concept of age appropriate boundaries. The legislation is silent
on creating resources to help parents understand that children are not
supposed to be one parent's best friend after the other parent leaves
the family.
Which is not to imply that no children will benefit from it. Still,....
While it is true that children are routinely blocked from meaningfully
expressing important preferences in custody cases under current law before
this change, I have to observe that in my years of family law practice
I have had many clients (both mothers and fathers) who I have either witnessed
or suspected of pressuring children in alienating ways to express a preference
in that parent's favor (and I also attempted to put a stop to it by
explaining the emotional damage this may cause). I have seen many more
parents on the opposing side who do so, and their lawyers whom I believed
encouraged such activity.
What happened at father's house, at mother's house, with their
new spouse or girlfriend or boyfriend, and so much more is just too enticing
a subject for some parents and now that information will be considered
relevant by parents who may feel they are being invited to obtain children's
statements of parental preference. These parents will attempt to introduce
such information to the court, whether in their own declarations and testimony
or through the voice of the kids. Children will be questioned and interviewed
by parents, and enlisted as co-participants in particularly the high conflict
parenting struggles. If the parents are unable to maintain a sensible
decorum in managing discussions with their children, how can we expect
children not to be cast adrift on the seas of emotion that accompany divorce
and custody contests?
Under the new statute either minor's counsel, an evaluator, investigators,
or mediators who provide custody recommendations to the court, must indicate
to the Judge whether the child wishes to address the court - and the judge
is also required to ask this question. Either parent's attorney may
also make that representation to the Court, which then triggers the issue.
It is hard to imagine that any attorney or self-represented party who finds
themselves on the otherwise loosing end of a custody evaluation or recommendation
will not make this request. Indeed, it will be attorney malpractice not to do so!
An unfortunate consequence of this new statute will be to aggravate what
I see as the gender wars between mothers and fathers in custody disputes.
Some mothers believe that they are by nature better suited to child rearing,
and the reality is that many do serve their children very well as the
primary psychological parent particularly in early life. Some fathers
believe that they are disenfranchised by such views, and make a conscious
decision to step out of children's lives "until they get older".
Any battle is unfortunate, and also creates victims. We all decry in theory
the lack of fathering in our society.
Since mothers are statistically in greater control of children than fathers
(again, perhaps for good and valuable reasons), the effects of this statute
will fall more heavily in favor of mothers and so against fathers - which
is possibly, but not of a certainty, one reason why Assemblywoman Ma may
have introduced it. More likely, the idea sounded better than the reality
may become.
I suspect I will be accused of gender bias in saying this. But because
mothers more commonly find themselves as children's primary parents
for much of children's adolescence (sometimes by default since some
fathers don't seem willing to assume the role or take on a greater
parenting responsibility) this statute will have an effect of encouraging
behaviors that promote manipulating discussions with children about which
parent they should prefer. Few parents of either sex will likely resist
the challenge of not overstating their child's supposed desires in
their own favor.
Courts and the Judicial Council will need to develop policies and procedures
that minimize the negative impacts of this new battlefield on our children.
There are certain to be child casualties, however, and I am left wondering
which outweighs the other: the costs to children of conflicted parents,
or the benefits?
T.W. Arnold
