Childrens Preferences in a Custody Dispute

The Age & Capacity of the Child

Children of any age cannot be required to testify, and until a few years ago it was relatively unusual for children to be given the opportunity to testify in California custody proceedings, but legislation implemented in 2012 (Family Code Section 3042) provides that children who are at least 14 years of age and possess the mental capacity to do so shall be permitted to testify as to their custodial preference unless the court determines that this would not be in the child’s best interest. With regard to children that are under the age of 14, they shall be allowed to testify only if the court affirmatively determines that this will be in the child’s best interest.

Best Interest Determinations

In making a determination as to whether testifying in a child custody proceeding is in the best interest of a child, the presiding judicial officer (judge or family law commissioner) is required to consider a number of factors, including:

• • Whether the child is likely to suffer emotional harm, either from being allowed to testify or denied the opportunity to do so.
  • Whether addressing the court may affirmatively benefit the child.
  • Whether the child has a strong desire to testify.
  • Whether or not the child’s testimony will have any bearing on the court’s decision.

Determining a Child's Desire to Address the Court

Either party to a custody dispute can inform the court of a child’s desire to address the court, and the presiding judicial officer may also inquire about the child’s preference (but is not required to do so.) Any Child Custody Evaluator or Recommending Mediator involved in the case, or Minor’s Counsel (an attorney appointed on behalf of the child), do have a legal obligation to inform the court of a child’s custody preferences and/or desire to address the court.

How the Child's Testimony is Taken

If the court determines that a child has the intellectual and emotional capacity to express his or her preference and that it is in the child’s best interest to do so, there are several ways that a child’s wishes may be presented to the Court that can often be less emotionally difficult than open testimony, including speaking with the judge in a private office (“chambers”), which may include the presence of a court reporter to create a record of the child’s testimony, or speaking privately with a Child Custody Evaluator, Recommending Mediator, or Minor’s Counsel. The Family Court is cognizant of the negative impact testifying may have on a child and they will seek to secure the child’s input in the manner least likely to cause any harm.

Impact of the Child's Preference on a Custody Determination

Courts in San Francisco, San Mateo, and California in general must consider the wishes of a child who has the capacity to form an intelligent preference and in whose best interest it is to do so, especially if the child is over the age of 14. However, the court may also consider such factors as the child’s maturity & sincerity, as well as any evidence of emotional pressure, conditioning or other influence which one parent may have exerted, intentionally or not, upon the nature of the child’s relationship with and attitude toward the other parent.

New Developments

In January of 2017, a bill was filed in the California state legislature (SB 170) which if passed would lower the age of at which children are presumed to have the right to testify in custody proceedings from 14 to 10.