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.
his 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.
Under California Family Code section 3042, “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.” According to the Code, whether a child will be permitted to testify is evaluated on a case-by-case basis. If the court determines that testifying is not in the child’s best interest, the court shall state its reasons for that finding on the record. Although this provision specifically addresses children over the age of 14, children under 14 are not categorically disqualified. However, before a child under the age of 14 will be permitted to testify, the court must conclude that testifying is in the child’s best interest.
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
Although a child is permitted to testify in family court proceedings regarding custody or visitation, nothing in the family code requires a child to express to the court his or her preferences or provide any other input regarding the proceedings. As always in family law, the paramount concern is the best interest of the child.
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