Q. I have heard that children will be able to decide which parent they want to live with in 2011, is this true?

A. No. However, at certain ages their input may become more important to courts in deciding the question effective 1/1/2012.

Revised Family Code section 3042, effective January 1, 2011 but not implemented until January 1, 2012, directs trial courts to allow testimony from children who are aged 14 years or more on issues relating to custody or visitation, unless the judge or family court commissioner makes a finding on the record that doing so would not be in the child's best interest. In the event a court makes such a finding, it is nonetheless required to "provide an alternate means of obtaining input from the child." This statute is on its face intended to allow children to express preferences about their relationships with their parents, whether they be in terms of primary residences or visitations, but it opens the door to much more. Some judges will struggle to limit its application, for some reasons.

I predict that it is going to become a time-consuming, destructive mainstay in the diet of family law courts and custody attorneys or that judges will develop a method of nullifying the intent of the statute. As an experienced custody and family law attorney, I believe it is a really bad idea. But for now the reality is that children will be testifying in court like never before. How will family law courts deal with this legislative mandate? I suspect quite reluctantly since family judges see the problem more clearly than our legislators apparently do.

Judicial policy is likely to require, as a threshold question, a balancing of a number of concerns. These include the need to protect the child from perceived harm from the act and consequences of testifying, the new statutory obligation to consider children's expressed wishes and their supposed desire to express those wishes (as probably urged by the proponent parent), and the probative value of the child's input in deciding the issuers at hand (this probative value is implicit in the statute). I think most judges will want to avoid such testimony, but are going to have figure out reasons they can readily articulate why not to take the testimony in order to avoid reversals by appellate courts.

In arguing in favor or against introducing such testimony, you will want to be able to talk to the court about the following likely threshold judicial concerns:

  • Will it be useful to the court to permit questioning of this child?
  • What will be the risks and benefits to a particular child of being permitted to testify in favor or against a parent?
  • How shall testimony occur? Will it be allowed in open court, or in the judge's chambers?
  • Will there be uniformity between jurists or branches or counties in terms of court policies, or will it just be every department decides for itself how and what rules apply?
  • Who besides the judge will be allowed to ask questions of the child? This includes questioning outside the court proceeding, say when a third party is appointed to obtain the information for the court.
  • What type of cross-examination will be permitted, since cross-examination is essential to assuring due process within the adversary court setting by testing the credibility and basis for testimony?
  • Will any safety measures be adopted, and will there be any sensitivity to the potential consequences to children once kids are drawn into testifying, since they can't possibly have any understanding of how such testimony will affect their parental relationships with the non favored parent?
  • Should different standards be applied in deciding to allow testimony from children about their parental preference when those requests are made after therapist based or similar recommendations come out and disfavor a party, as opposed to before they recommendations are known? After all, what is to stop every disgruntled parent from demanding that their child state their preference (which that parent doesn't like or accept) in every case?
  • What testimonial facts will be relevant? A child's stated preference is one thing, but shouldn't a party or their attorney then be permitted to ask questions about parental coaching? Spoiling and buying kid's loyalty? Whether the child wants to live with mom or dad because they don't impose rules in their home?
  • Does the court even have enough information to answer the threshold question of whether a child should be permitted to testify without first seeking outside assistance?

In order to succeed in achieving a client's goal of hearing from children when it serves that parent's agenda or perceptions, or in limiting either a child's input or damage to the child by having to voice a preference for one parent over another, custody lawyers and self-represented parties will do well to consider these questions in advance of making requests to the court.

It will be interesting to see if some judges effectively nullify the statutory mandate by imposing roadblocks or alternate routes that keep the questioning outside the family court proceeding itself.

Note: The Judicial Council has now, a year after this article was written, adopted Cal.Rules of Court Rule 5.250. Be sure you read and follow it carefully if a child wishes to express a preference.

T.W. Arnold