Q. We have a hearing coming up before the Christmas holidays over custody
and visitation issues. I believe my children should testify in court about
their father's living conditions, as well as what they have told me
about some things involving the woman he has sleeping over, and what their
preferences are as to custody. Is this possible?
A. It is possible under current
Family Code section 3042. It may or may not be a wise choice for the sake of your kids, however,
since it sounds as if you expect one or more of them to say things to
the judge that might be make them feel as if they've betrayed their
dad, chosen you over them, or that they are being placed into the middle
of your dispute. I beg you think carefully about what you say to your
children, and what you do here.
AB 1050 passed both houses of the California legislature in August, 2010.
It becomes law on January 1, 2011 as
revised Family Code section 3042. However, it is not implemented until 1/1/2012. Existing law required family
courts "if a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody, to consider and give
due weight to the wishes of the children" in making custody orders.
New Family Code section 3042 will require courts to permit a child who is 14 years of age or older
to address the court regarding custody or visitation unless the court
determines that doing so is not in the child's best interests, and
in that case the court must explain that finding on the record. When judges
and family court commissioners are instructed to state their findings
on the record, it can sometimes be easier for them not to error on the
side of permitting the testimony - which is why such provisions are added
to statutes by their supporters. At the same time, requiring judges to
state their reasoning does cause thinking judges to better evaluate the
issues before them.
New Family Code section 3042 requires the court to provide an alternative means of obtaining information
regarding the child's preferences if it does not allow a child 14
or older to testify as a witness.
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.
According to its author, Assemblywoman Fiona Ma, current law was not sufficient
because children over a certain age who had the capacity to express important
preferences were routinely not allowed to testify under former section
3042. Hence, she believed that children's wishes were ignored except
through the voices of third party evaluators or minor's counsel, and
even then that they were not given proper weight. In my experience this
was factually true. There is a longstanding judicial antipathy towards
the unseemliness of testimony from children, and questions about its reliability.
The statute does not preclude younger children from testifying and so
the law is essentially unchanged as to them - in their cases the court
is not required to make findings on the record if it does not permit testimony.
The Bill's author also stated that nothing in the statute will require
a child to express his or her preference. Instead she claims that section
3042 is strictly intended to provide a better avenue for participation
in the proceedings and not to pressure children to express their wishes
against their will. By the way, Assemblywoman Ma also sponsored Assembly
Bill 102 of 2007, which permitted parties to registered domestic partnerships
to change their names to the last name of their new legal partner, which
Accordingly, the Bill directs the California Judicial Council to promulgate
standards and guidelines and rules and procedures for the examination
of child witnesses, and to suggest alternate and less intrusive methods
for obtaining the information about preferences beyond directly questioning
them in court.
Hence, at least as to your children's custody preferences, depending
upon their ages, after January 1, 2012, you will likely be able to have
the judge listen to them, particularly since there will be a period of
confusion, especially in smaller jurisdictions, about how to manage child
testimony for months to come.
I beg you to be careful with the power this new law gives custodial parents,
which I fear if misused may become an invitation and an opportunity to
increase conflicted and alienating behaviors rather than a simple and
useful means of allowing children a voice in the proceedings.
T.W. Arnold, III, CFLS
December 1, 2010