Last year, I blogged about the law which was slated for implementation  January 1, 2012 concerning children testifying in family law matters (Let The Children’s Voices Be Heard).  The law is now in effect with an amended statute (Family Code section 3042) and a new rule of court (California Rules of Court, Rule 5.250) which implements the statute by telling us how to apply Family Code section 3042.

This past weekend I attended the AFCC (Association of Family and Conciliation Courts) conference and a significant part of the proceeding was devoted to discussing the new legal issues about having a child testify versus having a child’s voice heard through means other than testifying. There seems no doubt a child’s voice concerning preferences about custody and visitation is now allowed.  The aspect of the new law that is causing so much discussion is permitting a child to testify.  The new laws are lengthy, complex and untested.  What seems clear is that the overarching consideration in allowing a child to testify is whether or not testifying is in the best interest of the child.

At the end of the conference, we had the great opportunity of listening to and participating in a discussion with six judges from around the State of California, who shared their thoughts about children testifying in their courtroom.  Below is some of what the judges said on this topic:

• Interviews with children must be recorded by a court reporter, even if the testimony is taken in the judge’s chambers.
• The new law regarding children testifying is truly a “preference” statute, which means it confers the right to have a child’s voice heard concerning his or her preferences on custody and visitation.  The law, amended statute and rule do not give a child a right to testify.
• Children’s participation in the court process is to be determined on a case-by-case basis.
• A child must be kept safe when and after testifying. For example, the court must consider whether the child will be reprimanded by a parent for testifying.  Judges should consider whether there will be a negative impact on the relationship between the child and one or both parents as a result of the proffered testimony.
• If a child is not allowed to testify, the court can still hear the voice of the child through a custody evaluator.
• Some judges will wait until near the end of the case to consider whether or not a child is allowed to testify.  At that point, the judge can determine if the child’s testimony is needed in making a decision.  No matter what, the new law states a child’s voice “shall” be heard, which can be done by means other than testimony.
• The custody evaluator can recommend to the court whether or not a specific child should testify. The recommendation should come after asking certain questions.  These include:  Is testimony in the best interest of this child?  Would this child be a credible reporter in the courtroom?  Can this child withstand cross examination by attorneys or by a parent who does not have an attorney.
• If a parent wants a child to testify, that parent or the parent’s attorney should be prepared to suggest to the judge how the testimony should be obtained. Factors to consider include whether the testimony should be in an open or closed courtroom, or in the judge’s chambers with a court reporter present; whether lawyers should be present; and whether questions can be prepared by each party and given to the court for asking the child. Other issues involve determining who asks the child questions (the judge or lawyers?), and determining if the child should see a therapist for confidential counseling about the emotions involved in testifying.
• Courts will need to consider appointing a lawyer to represent and protect the child.
• If a child is going to testify, the child may now be subjected to a deposition.
• Any child called to testify should be educated beforehand about what he or she will experience, by being given a tour of the courtroom and an explanation about the process of testifying.
• A judge will possibly ask the child directly the threshold question, “Do you want to testify?”  If the child says “no,” testimony will not be taken.  If the child says “yes,” then the court must work to protect the child in the process.  That comes down to deciding if it is in a specific child’s best interest to testify.

All judges agreed that children should be allowed to be part of the family law process.  The question remains about how best to accomplish this, and it will only be answered as courts gain experience with the new law, statute and rule on children’s testimony.