THE CHILD WITNESS

A New Law That May Have Dramatic Consequences For Divorces Where Children Are Involved, California Family Code Section 3042 becomes operative on January 1, 2012. That code section will allow children who are the subject of custody cases to testify before the court. Specifically Family Code Section 3042 provides that “the court shall consider, and give due weight to, the wishes of the child” in making an order regarding custody or visitation. In the case of children who are 14 or older, if that child wishes to address the court regarding custody or visitation the court is required to allow the child to do so unless the court determines that addressing the court would not be in the child’s best interest. In that instance the court is required to state on the record its reasons for not allowing the child to testify. Moreover, a child under the age of 14 may be permitted by the court to testify if the court determines “it is appropriate pursuant to the child’s best interests.” If the court precludes a child from being called as a witness, it is required to provide an alternative means of obtaining input from the child as well as other information regarding the child’s preferences.

This new law is a huge departure from prior practice where courts very seldom allowed children to testify. Because of the newness of this legislation it is difficult to know whether and to what extent children, both under 14 and 14 and older, will be testifying in court. There is nothing in the law that requires children to testify but if a parent or that parent’s attorney asks the court to hear from a child 14 and older the court is required to take testimony absent good cause.

One can imagine a number of abuses that this new law could engender such as parents coaching their children and encouraging the children to participate in legal proceedings. The conventional wisdom has always been that a courtroom is not the place for a child and that we, as adults, should not be embroiling them directly in custody disputes. That reasoning seems to have changed with the implementation of Family Code Section 3042. I have never represented a parent in a custody dispute who hasn’t told me that if only the child’s wishes could be made known or if the child could address the court, the judge would understand why the child shouldn’t be with the other parent. I have also never spoken to an adult whose parents were embroiled in custody litigation when that person was a child who wasn’t still upset at the level of involvement at least one parent expected of the child. Now, it appears, that embattled parents will not only have their day in court, but will be able to see that the child has his or her day in court as well. It will take years before we can determine what impact this involvement has had on the child’s long term emotional well-being.

And, finally, we should consider that in 2004 a study from Ball University found that adolescents learn to manipulate their parents following a divorce or separation; gaining more control of their situation in a two-household family. Is there any doubt who is going to be in control after your 16 year old has testified?