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Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

Child's Testimony in California Custody Proceedings - What you need to know.

Child's Testimony in California Custody Proceedings - What you need to know.

Minor Child's Preference in Custody Proceedings

Often, one of the parties in a custody proceeding wants the court to consider the child's preference to live with that party as opposed to the other parent.

This raises issues of whether the child may in fact testify, whether it is in their best interests to do so, how the child's views will be received by the court, and what weight the court will give such preference.

The court must be made aware of the child desire to address the court about the child's preferences.

The court may inquire on its own, or receive information that the child wishes to address the court from the parties; and, professionals such as mediators, counselors, investigators, custody evaluators, or an attorney appointed to represent the minor/s have a mandatory duty to inform the court if a child wishes to address the court on custody issues.

A child fourteen (14) years or older must be allowed to testify

California allows a child fourteen (14) years or older to testify in divorce proceedings involving custody issues; unless the testimony would not be in the "best interest" [see below] of the child.

A child under fourteen (14) "May" testify if appropriate

A child under the age of fourteen (14) may testify if the child is of "sufficient age and capacity to reason, so as to form an intelligent preference as to custody or visitation." [Family Code section 3042]

Courts are more receptive of allowing the testimony as the child approaches teenage years, but some will listen to a child as young as age seven or eight. [But doubtful five-year-old could realistically meet the standards required.]

Court may prohibit child's testimony if not in their best interest.

The court may prohibit the child from testifying if it determines that the value of the child's testimony is outweighed by its lack of probative value, or outweighed by the emotional detriment it may have on the child, or otherwise is not in their best interest. 

For instance, It may be that having the child testify puts too much of an emotional burden on the child who may fear repercussions form one of the parents, or fear disappointing them.

Even when a young child is allowed to testify, courts must be careful to let the child know that their preference will not be the sole determining factor, so as to not put the responsibility for the custody determination on the child.

The court must allow alternate means of input from the child where child is not allowed to testify

If the court determines that it is not in their best interest.to testify, once a child has expressed the desire to address the court regarding their preference, the court must provide alternative means of obtaining their input.

The court may order that information on the child's preference be received from a third person, such as a parent, mediator, counselor, or professional custody evaluator. The information must be provided in writing and fully document the child's views; and the person providing the information must, if requested, be made available to testify and be subject to cross-examination.

Minor's counsel may not testify as to the child's views and preferences, but must only inform the court of the child's views, and their desire to address the court.

Advice to child re lack of confidentiality.

Whether the child testifies or merely shares his or her preference and information with a third party, the child must be told that that the child's views are not confidential and will be shared with the parties

Where the child's testimony is allowed, the court may take measures to protect the child.

The Court may exclude the public from the courtroom, may take the testimony in chambers, may exclude the parents and/or the attorneys from chambers testimony, and may allow or not allow the attorneys, or other professionals to ask the questions. [although the attorneys are allowed to submit written questions for the judge to ask].

The court may also limit the kinds and number of questions to prevent harassment or embarrassment, and may tailor the questions so they are appropriate to the child's age and cognitive level.

The testimony must be reported if the parties and attorneys are excluded, or they must be allowed to hear by remote listening device. [see generally Cal Rules of Court 5.250.]

Child's stated preference be given due weight

The court must "consider" and give "due weight" to the wishes of the child. However, the child's preference is only one factor among the totality of circumstances that the court considers in determining what custody arrangement is in the child's best interest.

A child's preference is entitled to greater consideration ["serious"] in a modification proceeding as opposed to an initial custody determination. In a modification proceeding the child has much more experience with the existing arrangement and would therefore have a more informed basis for his or her preference.

If  you have further questions regarding child's testimony in custody proceeedings, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.