The California legislature has changed how a family law court can receive a child’s testimony during divorce proceedings. New rules have now been created to help family law courts in determining the best way to accomplish this without bringing harm to the child. The Elkins Family Law Task Force was created in part to help develop a solution to this problem.
In a family law case involving a child, the child’s rights and very future are often affected. The family law courts are faced with the problem of obtaining the child’s testimony in an attempt to determine their desire, yet do so in a manner that avoids entangling them in the unpleasantness of litigation. In many instances, the child’s input is important to achieve proper resolution of the matter or to ensure that their feelings and desires have been appropriately heard and addressed.
The task force determined that “Children’s participation in family law matters should be considered on a case-by-case basis. There should be no blanket rule or practice requiring or prohibiting children from participating in the court processes or procedures.”
The California Legislature has rewritten Family Law § 3042 to require courts to allow the testimony of children 14-years-of-age and older who “wish” to address the court and whom the court finds it is in their best interest to do so. The court is responsible for determining this, and the section indicates no child is required to “express his or her preference or to provide other input regarding custody or visitation.” Nor are children younger than 14 years of age prevented from testifying, but the court has to find that such testimony would be both useful and not harm the child.
The court can also be informed of the child’s wishes by other participants in the process. The Judicial Council has issued an additional guideline for courts to use to determine how this should occur.