For years, California has had a law that did not standardize the process for children testifying about their child custody and visitation preferences during their parents' divorce hearings. The California Legislature recently passed into law a bill that intends to make the child testifying process more clear and consistent.
The bill makes changes to California Family Code § 3042. It requires courts to hear and consider a child's preferences to determine child custody and child visitation arrangements as long as children are of an age when they can "intelligently reason," which, under the new law, is 14 years old. Prior to the changes, minors could testify on their own behalf, but there were no guidelines for the courts and child visitation attorneys to follow to ensure the testimony of a child followed a standard procedure. Sometimes, judges heard a child's testimony in chambers rather than in an intimidating court room, or demanded that an advocate for the child, such as a social worker, testify on the child's behalf.
Now, a judge must hear the testimony of the child if the child wishes to present his or her visitation preferences. If a judge decides that a child's testimony is not appropriate given age or reasoning ability, the judge must declare his or her decision on the court record. As established by the current law, a child's testimony during divorce and custody proceedings must be in the child's best interest. If a judge does not believe testimony is in a child's best interest, he or she can refuse to hear it.
Should a Child Testify on Visitation?
A child's testimony on his or her preferences for custody and visitation can provide compelling support for, or objection to, a parent's custody or visitation petition. However, the courtroom is an adult space that can be intimidating for a child. In most cases, it is best to keep children out of court unless absolutely necessary. Parents should do all they can to work together to determine a child custody / visitation plan that is in their children's best interests.
To learn more about child custody or visitation laws in California, speak with an experienced San Diego child custody lawyer.
