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Can a Child Testify in a Custody Case?

Posted by attorney Megan Major

Parents in child custody cases often wonder if the court will consider what their child wants in making a decision. Until recently, there haven't been significant guidelines in California regarding whether a child's wishes will be considered. However, effective January 1, 2012, the State of California has issued new guidelines regarding this issue. The new guidelines are contained in Family Code section 3042 and California Rule of Court 5.250.

Guidelines for Children's Testimony

If a child is age 14 or older and wants to address the court regarding his or her wishes, the Judge now has to either allow him or her to do so, or make a specific finding regarding why that would not be in the child's best interest.

A child under the age of 14 can also address the court, but in that case, the Judge has to make a specific finding as to why that would be in the child's best interest.

Once a Judge has determined that it would be in a child's best interest to address the court, that does not mean that the child will be testifying on the witness stand. It is often much less traumatic for a child to express his or her wishes in an alternative forum, such as:

  1. Talking to a Family Court Services Mediator or Child Custody Recommending Counselor -- The Mediator or Counselor will talk to the child and then issue a report containing the information provided by the child to both the Judge and the child's parents.

  2. Talking to a Child Custody Evaluator -- The Child Custody Evaluator will talk to the child and then include the information regarding the child's wishes in the Child Custody Evaluation Report.

  3. Appointing Minor's Counsel -- The court can appoint an attorney to represent the child. The attorney will then talk to the child in order to ascertain his or her wishes, gather additional information, and then make requests on the child's behalf to the court.

  4. Interviewing the child in chambers -- If the child wishes to speak directly to the Judge hearing the case, the Judge can interview the child in chambers (the Judge's office) rather than having the child testify in open court from the witness stand. Often, a court reporter will be present in chambers so that a record of the conversation exists. That record can then be requested by either parent.

Does a Child Get to Decide Where He/She Lives?

Just because a child testifies or expresses his or her wishes to the court, that does not mean that he or she gets to decide where to live, or which parent to live with. Children are still minors, and unless they are emancipated, they do not get to make their own decisions about who to live with.

However, a children's preferences are often taken into account by Judges, especially if the child is making other responsible decisions. For example, a child who is earning straight-A's and is participating in extracurricular activities or working part-time is going to have his or her opinions considered much more strongly than a child who is failing several classes and taking drugs.

This doesn't mean that the court won't want to hear from a child who is failing classes, however. That child might be able to provide helpful information about what the living situation is with each parent, and that information might be considered if one parent is providing a better learning environment for the child than the other parent.

How Do I Request for My Child to Testify?

If you know that your child wants to address the court, you can alert the court to this in several ways:

  1. Tell the Family Court Services Mediator or Child Custody Recommending Counselor during your Mediation/Counseling session that your child wants to address the court.

  2. During your Hearing, tell the Judge that your child wants to be heard.

  3. In your Motion or Responsive Declaration, state that your child wants to address the court.

  4. If the child has already spoken to either Minor's Counsel, a Family Court Services Mediator/Counselor, or a Child Custody Evaluator, that person is required to notify the court if the child still wishes to address the court directly.

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