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Judicial Council Releases New Rules of Court for CHILD TESTIMONY Re CUSTODY PREFERENCES

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 or visitation."

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



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