Involving a minor child in a child custody matter should be done only if absolutely necessary. To assess whether a child’s testimony should be considered, the court looks to California Family Code Section 3042(a):
“If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.”
A child over 14 years of age is more likely to be allowed to provide his/her input. California Family Code Section 3042(c) specifically provides:
“If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests.”
Most commonly, the court will direct a mediator from Family Court Services to interview the child. The mediator will then prepare a summary of the interview. The summary will be provided to the parties and judge. This method is easier on a child than having them testify in open court.
If the judge does want to hear from the child, he/she has to consider whether having the child testify is in the child’s best interest. Factors that the court takes into consideration include the following:
(A)
Whether the child is of sufficient age and capacity to reason to form an intelligent preference as to custody or visitation (parenting time);
(B)Whether the child is of sufficient age and capacity to understand the nature of testimony;
(C)Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court;
(D)Whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision-making process; and
(E)Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so. (California Rule of Court 5.250(c)(3)).
It’s important to know the preferences of your particular judge. Some judges are more open to hearing from a child in the courtroom than others. Additionally, the impact that testifying may have on a child should also be taken into consideration, as some children are more sensitive than others.
