Effective January 1, 2012, California Family Code Section 3042 is going to change as part of the sweeping law known as Elkins.  One aspect of this new law involves children testifying in custody and visitation proceedings.  Currently, family law provides the potential for children to testify, but in practice, it is a rare occurrence in family law courts.  This will all change in 2012.

Over the age of 14:  Mandatory Testimony if Child Wants to be Heard

The new law provides that if a child who is 14 years old and older is a subject in the proceeding and wishes to address the court, that child shall be permitted to do so unless the court determines this is not in the best interest of that child.  This means that if either parent does not want their child who is 14 years or older to testify, they are going to have to prove it is not in the child’s best interest.  If this cannot be shown, the child will testify if this is what the child wishes to do.

Under the age of 14:  Discretionary Testimony if in the Best Interest of Child

The converse is true for a child under 14 years of age.  This child may testify if it is determined that testifying is in the child’s best interest.  Therefore, if either parent wants their child who is under 14 years of age to testify, that parent must prove it is in the child’s best interest to testify.

The Law versus Reality

Most lawyers and judges do not look forward to children testifying.  If parents have a child over the age of 14, the parents need to balance the law concerning children testifying against the reality of what the child wants.  In many divorced families, the reality is that children over the age of 14 tend to live with the parent of their choice irrespective of a court order.  Why?  Because at a certain age it is difficult to control a child’s physical presence and the child is not the person bound by the court order; rather, the parents are bound by the court order.

The California legislature has determined that it is time for children to have a say in where they live and to testify about events and circumstances which bear on the issue of custody and visitation.  Since most children are likely going to be able to express a preference to a judge about where they want to live, maybe parents should consider honoring their child’s wishes before they are placed into the position of testifying in a courtroom for or against one of their parents.  Obviously not every child knows what is best for himself or herself.  But the point is, maybe parents should at least listen in a personal conversation to why their children feel they way they do concerning their living arrangements – rather than hearing it as courtroom testimony.