California Rules of Court For Children's Testimony
Expressing Parental Preferences Per
Family Code Section 3042 - C.R.C. RULE 5.250
On January 1, 2011 amended
Family Code section 3042 became effective. It changed prior law involving custody and visitation
of children by, in principle, mandating that Family Court judges consider
the voices of kids before making custody and visitation determinations
affecting them. These revisions would represent a major shift from how
judges and commissioners have traditionally viewed their discretion whether
to listen, or ignore, what children might have, directly, to say. While
my first inclination was to express a painfully obvious "duh, of
course" kind of response, we may see whether this turns out to have
benefitted and protected children, in time.
Per subsection (h) of 3042 the California Judicial Council was given until
January 1, 2012 to 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
That task is complete. We have sparkling new
Cal.Rules of Court, Rule 5.250. It is of epic length....
Rule 5.250 is a must read for any lawyer or self-represented party who
desires to offer or resist a proffer of a child's testimony about
these hugely uncomfortable topics.
I began a conversation with you about my opinions on this important topic
in December 2010, expressing a bias against
Family Code section 3042 testimony because of a concern that parents will
consciously or unconsciously be encouraged to enlist children into custody battles, creating a power imbalance in the family triad that children have few
defenses against. Since mothers statistically have custody of children
(and not for statistical reasons as some men ought recognize), this has
the potential to separate genders into a kind of class struggle. But that
is not news. It creates incentives for behaviors around your children
that contain layers of intention beyond the simple joys of modeling how
you believe one should act in the world.
Supporters of section 3042 believe that children should have a much greater
voice in the family court process when their circumstances are being decided,
and this makes sense. Custody decisions should be informed. Children,
as the center of the controversy, could be made to be the most important
informers. However, they have a tendency to favor short term wants rather
than their best interests.
In particular, I suspect that some trial courts will tend to return to
their prior personal views on the matter, meaning that while Rule 5.250
requires a court to state certain findings on the record in order to overcome
the 'presumption' of the statute that child testimony should be
allowed, all that is generally required of judges to avoid being reversed
on appeal is compliance with the rule (i.e., explaining why they ignored
it) and evidence that they thought about the subject before deciding.
I apologize for not getting this to you sooner - but here you have it.
Anyway, I'll expand this Blog topic soon.
T.W. Arnold, CFLS