Carlsbad Family Law Attorneys

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

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 858-371-5569.

© 2016 Millionairium and Griffith, Young & Lass. Authorization to post is granted, with the stipulation that Millionairium and Griffith, Young & Lass are credited as sole source. Linking to other sites from this document is strictly prohibited, with the exception of herein imbedded links.


Meet Our Team 

Honest. Fearless. Bold.
  • John N. Griffith, Esq., CFLS
  • Catie E. Young, Esq., CFLS
  • Amy J. Lass, Esq., CFLS
  • Shirin Asgari, Esq., CFLS
  • Noelle J. Slattery, Esq.
  • Eric Cowdery, Esq.
  • Joshua Yee, Esq.
  • Shaudi Malekzadeh, Esq.
  • Lea Trojanowski, Esq.
  • Greyson Sharp, Esq.
  • Brittany Van Ryder, Esq.
  • Karissa Piralla, Esq.
  • John N. Griffith, Esq., CFLS John N. Griffith, Esq., CFLS


    John Griffith has practiced exclusively in the area of family law since 2009. John is a Certified Family Law Specialist certified as an expert in the area of family law by the California Board of Legal Specialization. Prior to opening Griffith, Young & Lass, he worked as the managing partner of one of the largest family law firms in North County San Diego.
    John N. Griffith, Esq., CFLS Photo
  • Catie E. Young, Esq., CFLS Catie E. Young, Esq., CFLS


    Catie E. Young excels in child custody cases and move-away trials. She has a unique approach to child custody cases and clients of Griffith, Young & Lass tend to gravitate toward her in these cases. Since joining the firm, she has continuously brought her zeal and compassion to representing clients in child custody and domestic violence cases, and in December 2011, she became a partner at Griffith, Young & Lass.
    Catie E. Young, Esq., CFLS Photo
  • Amy J. Lass, Esq., CFLS Amy J. Lass, Esq., CFLS


    Amy Lass, a certified family law specialist, was born in New York and raised in San Diego, California. Amy graduated from Cal Poly, San Luis Obispo in 2003 with a B.S. in Economics with a concentration in Enterprise Accounting. Amy went on to earn her law degree from Thomas Jefferson School of Law and graduated cum laude in 2006.
    Amy J. Lass, Esq., CFLS Photo
  • Shirin Asgari, Esq., CFLS Shirin Asgari, Esq., CFLS


    Attorney Shirin Asgari has a broad spectrum of legal experience and has handled matters in family law, criminal law, business law, and national security law. Currently, she focuses on family law matters and is a strong advocate for the rights of her clients. She dedicates time and attention to the needs of each client and the unique circumstances their case presents.
    Shirin  Asgari, Esq., CFLS Photo
  • Noelle J. Slattery, Esq. Noelle J. Slattery, Esq.


    Noelle J. Slattery, Esq. has a bachelor’s degree in Performing Arts/Acting from Emerson College in Boston and a Juris Doctor ...
    Noelle J. Slattery, Esq. Photo
  • Eric Cowdery, Esq. Eric Cowdery, Esq.


    Eric Cowdery earned his bachelor’s and Master’s degrees before earning his JD from Golden Gate University as part of the Honors Lawyering Program. He was admitted to the California Bar Association in 2013 and has been working diligently in the field ever since. Taking a personalized approach to each case, Eric Cowdery is committed to working with clients to help them through the often confusing and complex legal process of divorce.

    Eric  Cowdery, Esq. Photo
  • Joshua Yee, Esq. Joshua Yee, Esq.


    Attorney Joshua Yeereceived his Bachelor of Arts degree in Political Science, from the University of California, San Diego. Joshua went on to receive his Juris Doctor degree from University of San Francisco. His experience working with a local Certified Family Law Specialist solidified his desire to become a family law attorney. Since becoming an attorney, Josh has exclusively practiced in family law.
    Joshua  Yee, Esq. Photo
  • Shaudi Malekzadeh, Esq. Shaudi Malekzadeh, Esq.


    Shaudi Malekzadeh is a Carlsbad family law attorney at Griffith, Young & Lass, advocating for the rights and interests of Southern California families in a variety of family law cases, such as child custody, alimony, spousal support, and the division of community property. She is committed to delivering effective legal representation to our clients, aggressively advocating for their legal rights, and offering compassionate legal advice.
    Shaudi  Malekzadeh, Esq. Photo
  • Lea Trojanowski, Esq. Lea Trojanowski, Esq.


    Lea Trojanowski is an attorney with Griffith, Young, and Lass, joining the firm in March 2021. Her pragmatic and level-headed approach to family law has allowed her to be successful in even the most emotional family law cases. Lea has effectively represented clients in a wide range of family law proceedings, but is particularly drawn to domestic violence restraining order cases.
    Lea  Trojanowski, Esq. Photo
  • Greyson Sharp, Esq. Greyson Sharp, Esq.


    Greyson Sharp received his Bachelor of Arts degree in Communications from California State University, Fresno. After ...
    Greyson  Sharp, Esq. Photo
  • Brittany Van Ryder, Esq. Brittany Van Ryder, Esq.


    Brittany Van Ryder joined Griffith, Young, and Lass as a Bar Clerk in September 2022. She became an Associate Attorney at the ...
  • Karissa Piralla, Esq. Karissa Piralla, Esq.


    A San Diego native, Karissa earned a Bachelor's Degree in Communication from UCSD and a Juris Doctorate from the University ...

Our Results Speak for Themselves

Over 100 5-Star Reviews Throughout Our Social Media Platforms
  • The way John presented our case was pure genius with meticulous preparation and deliberate action in court.

    “We were referred to John Griffith at GYL by our former attorney. I specifically was looking for an aggressive attorney that would yield results. John, Josh, and the firm performed flawlessly, and did ...”

    - MoMo M.
  • I would highly recommend Griffith, Young & Lass to anyone looking for ethical, honest, hard-working and skillful lawyers.

    “I would highly recommend Griffith, Young & Lass to anyone looking for ethical, honest, hard-working and skillful lawyers (I would stress these are actually rare qualities within the legal industry and ...”

    - Scott G.
  • You cannot find a better law firm.

    “I cannot say enough good things about John Griffith and this law firm. Each person i interacted with was responsive, intelligent, thoughtful and professional. Attorney Griffith worked very hard to ...”

    - Michelle P.
  • It was the best decision I’ve made yet and hopefully, it will be yours too.

    “She doesn’t back down from anyone. It was the best decision I’ve made yet and hopefully, it will be yours too.”

    - Ian R.
  • Understanding, accessible, and I was very happy with the outcome of my case. If I could give a higher rating I would!

    “Easy to work with, forthcoming about the process, set realistic expectations, and always kept cost in mind.”

    - Jennifer P.
  • All three lawyers worked together on the issues surrounding my case, which helped greatly when I was in need of answers or support.

    “The GYL team is always prompt at returning calls & emails. From personal experience, I can tell you that they will not step away from your case until it's finished.”

    - Kelsey L.
  • I couldn’t have made it without them! I highly recommend them!

    “GYL has been an extraordinary support and backing in my divorce. Being a male in the military, the process for divorce and custody is difficult. GYL was extremely helpful, and I was able to full custody of my children. That alone is such a monumental feat.”

    - Frankie S.
  • Worth every penny! My custody case went as stress-free as it could possibly be.

    “I hate seeing anyone go through custody battles but if you’re in that situation and need someone who is trustworthy and great at what they do, then I swear this is the place to get the help!”

    - Emily B.
  • I highly recommend GYL if you are ever in need of a family law attorney.

    “No matter who I corresponded with they were always knowledgeable of my case and quick to respond.”

    - Kimberley F.
  • Highly professional and supportive in a very uncertain time in my life.

    “My clearance was granted without any additional issues. I'd recommend this legal team to any Soldier needing help with their clearance.”

    - K. Brooks
  • Always willing to listen to your concerns. I would highly recommend.

    “Compassionate and kind, however, he will fight for you and your best interests. He is calm and calculated and extremely smart.”

    - Ann M.
  • Extremely helpful, responsive, and reasonable and got the job done amidst tenuous circumstances.

    “She and her team were extremely compassionate, sensitive with me while concurrently advocating strongly on my behalf.”

    - Jeremy R.
  • I felt like she was practical and knowledgeable and most importantly, she listened.

    “The professional and succinct assistance was a much-needed breath of fresh air in the maze of hurdles and complications with our family law case.”

    - David R.

Why GYL? 

Turn to a Team that Does It Best
  • We're Leaders in Our Field

    From case planning to preparation, to superior courtroom presence, our clients can be sure that they will walk into the Courtroom prepared and with the best chance of success.

  • Client Centered & Results Oriented

    Our representation is tailored to the unique circumstances of each client. We deploy the GYL strategic case trajectory dynamic to ensure the best chance at success at the most reasonable cost. 

  • Brilliant, Hard-Working & Honest

    We don't believe in wasting our client's time and money. Helping people is what drives us to excel at our craft. We first identify the goals and interests of each client, we then develop an efficient and effective case plan aimed at achieving those goals.

  • Responsible & Ethical Practices

    We believe in a responsible and ethical practice and stick to our values regardless of the situation. We're transparent and don't just tell our clients what they want to hear, unless it's what we believe, even if it may deter them from moving forward. We stand by our team's expertise and will always be upfront and honest with our clients. 

Get Started Today

Fill Out the Form Below or Call 858-371-5569 to Speak with an Experienced Attorney
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.