When parents get divorced and cannot agree who gets the children, it is up to the judge to make the ultimate decision. Prior to January 1, 2012, California Family Code Section (FC) 3042 only required the court to consider and give due weight to a child’s preference regarding custody if the child is of sufficient age and capacity. The child must also be able to form an intelligent opinion on the issue of custody.
After January 1, 2012, AB 1050 amended FC 3042 to add that the just must also consider such a child’s wishes regarding visitation. This amendment further adds that a child who is at least 14 years old must be allowed to directly address the court regarding custody and visitation. This can only be prevented if the judge finds that it would not be in the best interest of the child and in which case, the judge must states his/her reasons on the record.
The amended FC 3042 (f) adds that a child’s attorney, evaluator, mediator, or investigator (who is submitting a custody or visitation recommendation) must tell the judge if the child wants to address him/her directly or if the parents or their counsel would like to divulge the child’s wishes.
Children under 14 can testify at the court’s discretion, and when barred from testifying, children must be given an alternate way to make their preference heard.
The 2012 amendments is an attempt to address the disparities and provide an assurance that the child gets a chance to speak.
Pros and Cons:
The biggest benefit is it ensures a child’s voice be heard, which was not always happening before AB 1050. However, preference of a parent is subject to a child’s whims. They may love one parent at one time, then not like you so much the next day because you did not give them what they want. A child might also advocate for the more permissive parent, as opposed to the one who sets rules and limits.
A child’s preference is not binding and the judge must still consider other and all factors before making a ruling in the best interest of the child. Testimony in court also brings stress that a child might well avoid. The need to publicly and officially take sides in an often-bitter divorce adds additional stress to a child already having to overcome so many changes in his/her life.
Many states have differing views. In Florida, there is no clear answer and judges have different opinions whether children should testify even if the child is 17 years old. The rationale being that they do not want to place a child in the middle of a custody battle.
In North Carolina, cases provide that the wishes of a child “of sufficient age to exercise discretion are entitled to considerable weight.” But like in California, the child’s wishes are not controlling. In Indiana, the child must be “competent” to testify” which means knowing and understanding the difference between the truth and a lie and promising to tell the truth in court.
Having a child testify in court must be carefully scrutinized before it occurs. I have had conducted hundreds of jury trials, bench trials, or hearings and I have always proceeded with caution in calling children as witnesses. Just like any evidence, physical and/or testimonial, as the attorney, I weigh the pros/cons of bringing a child to court to testify and do so carefully.
Any comments or questions, feel free to email me at [email protected] or call my office at 310-601-7144.