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My Ex and I Are Embroiled in a Custody Dispute. Can My Child Testify?
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My Ex and I Are Embroiled in a Custody Dispute. Can My Child Testify?

On Behalf of | Dec 1, 2016 | Child Custody

Encinitas, CA – You are embroiled in a custody dispute with your soon-to-be ex in the state of California and your child has expressed a preference to live with you following the divorce process.

Can your child testify in court?

Before 2012, a child testifying in a custody hearing was practically unheard of. Judges were hesitant to allow children to testify, as the Court usually deemed it against the child’s best interests; particularly if the child was still young (under 14 years of age).

Back then, if a young child had a preference, the Judge would typically order custody and visitation based on what he or she felt was best for the child’s upbringing and future without hearing from the child directly.

On January 1, 2012, the State of California issued new guidelines regarding the subject of child testimony in custody hearings. These rules are contained in Family Code Section 3042 and California Rule of Court 5.250 and lay out how and when children are allowed to testify in California courtrooms.

Your Child Now Has a Voice in Court

California Family Code 3042 states that “Children’s participation in family law matters must be considered on a case-by-case basis.”

As Encinitas Family Law Attorney John Griffith explains, “Each case is different, and the Judge will take certain factors into consideration before allowing a child to testify. Those factors include your child’s age, maturity level and reasons for choosing you over the other parent.”

Older Children

If your child is of sufficient age (14 years or older), the Court will consider your child’s wishes when granting or modifying custody or visitation. Children of this age are seen by California lawmakers as being emotionally mature enough to formulate a preference of which parent to live with once the divorce papers are signed.

The Court also has a vested interest in protecting your child so that the process of giving testimony is as painless as possible. After all, divorce is hard enough on children. Giving testimony should not add to the emotional turmoil.

Keep in mind that if your child does testify, his or her testimony will not be the deciding factor in your custody dispute. The Family Law Judge will have the discretion to listen to your child’s preference of which parent to reside with, but will not necessary follow every aspect of the testimony given.

For instance, if the Judge deems that the evidence given is designed to pit one parent against the other, or sees it as a way for your child to rebel and isn’t sincere, the testimony may not be considered at all in the Judge’s final decision.

Even if the testimony from your older child is sincere, the Judge will still weigh your child’s preference and may or may not follow it. For instance, if your child requests that he or she wants to live with you and doesn’t want visitation with your ex at all, the judge may still grant visitation with your ex along with court-ordered counseling or other remedial measures.

In other words, the Judge will usually do what he or she can to help reestablish a bond between your child and your ex who the child no longer wishes to visit.

Younger Children

If your child is under the age of 14, the Court can still hear your child’s testimony, but again, it must be in your child’s best interests. If the Judge determines otherwise, your child will not be permitted to testify.

If the judge does not permit your child to testify, the Court must provide an alternative means of obtaining the information.

Consider Your Child’s Best Interests

If your child wishes to testify on your behalf, under California law, you are also allowed to request how and where that testimony is given. For example:

  • Will your child testify in public in an open courtroom, or in the Judge’s chambers with a court reporter present?
  • Will attorneys be present?
  • Will you allow each party to prepare questions that your child will then be asked?
  • Who will ask your child questions (the Judge or lawyers)?
  • Should your child visit a therapist for confidential counseling to come to terms with the strong emotions involved in testifying?

The Judge does not have to abide by your requests. Family Code 3042 and California Rules of Court 5.250 give the Judge several options to hear your child’s preferences as they relate to custody.

For instance, the Judge may order:

  • Your participation in mediation under Family Code section 3180.
  • The appointment of a child custody evaluator or investigator. A custody evaluator will be requested if the Judge feels that your child’s preference is due to the result of emotional or psychological abuse or alienation, and he or she feels that the matter should be investigated further before your child’s testimony is considered. Following that investigation, the child custody evaluator will make recommendations to the court on your child’s behalf.
  • That evidence be submitted and testimony taken by both you and your ex, and/or any witnesses.
  • Your child’s testimony be provided through a child custody recommending counselor pursuant to Family Code section 3183 (a), or through a child interview center or other professional.

The Judge may also appoint a minor’s counsel, which is a lawyer specifically for the child.Regardless of how the judge determines testimony should be given, the report provided to the court must fully document your child’s preferences in writing. The report should describe your child’s input in complete detail so that the Court can make an informed decision. The report will be provided to both you, your ex and your lawyers, and will also be filed in the family law file.

How to Request That Your Child Testify

In most cases, as the parent seeking custody of your child, you will file a formal request with the court and state in your moving papers that your child has expressed a preference to live you over your ex-spouse, or has stated a preference to spend extra time with you.

It is then up to you to state the specific facts of the living arrangements as they relate to your child’s preferences, and why that arrangement would be in your child’s best interests.

This is a delicate process where you’re required to balance the stating of your child’s preference for custody without pressuring your child to choose you as the custodial parent over the other parent.

Before you request that your child testify in your upcoming custody hearing, it would help to seek the experience of a child custody lawyer. Call our family law attorneys at Griffith, Young & Lass today for a free consultation at 858-951-1526.

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