Custody battles can have a life-changing impact on families. When you are in a custody battle, it is important to know the rights of your child and to understand how your child’s voice may be heard throughout the process.

General Child Testimony Rules in Custody Battles

If your child wishes to testify at your custody hearing as to his or her custody preferences, the judge will decide whether to consider your child’s testimony. The California Family Code Section 3042¹ states that children who are of sufficient age and have capacity to reason so as to form an intelligent preference as to custody or visitation may address the court in a custody proceeding. However, when a child does not wish to testify, then he or she cannot be forced to do so against his or her will. The California Rule of Court 5.250² makes it clear that there is no law or court rule that requires a child to testify or prohibits a child from doing testifying in a California custody proceeding.

Sufficient Age Requirement

If the child is 14 years of age or older and wants to testify in court regarding custody and/or visitation matter, The California Family Code Section 3042(c)³ requires the court to allow the child to do so, unless testifying would be against the best interest of the child. The court has discretion to determine whether testifying in court would be detrimental to the interests of the child.

How does the Court Determine Whether Testifying is in the Best Interest of the Child?

The best interest of the child is determined on a case-by-case basis according to the facts of a particular custody/visitation determination matter. The California Rules of Court 5.250(c) indicates that when determining whether addressing the court is in the child’s best interest, the judge or family law commissioner presiding over the case (also known as the judicial officer) must consider several different factors, including:

• Whether the child is of sufficient age and capacity to form an intelligent preference regarding custody and/or visitation
• Whether the child is of sufficient age and capacity to understand the nature of his or her testimony
• Whether there is information indicating that the child may be at an emotional risk if he or she is permitted or prohibited from being heard in court
• Whether the child could benefit from addressing the court
• Whether the child’s testimony will be relevant to the court’s decision-making process in a particular case
• And whether any other factors, including the child’s desire to testify, weigh in favor or against having the child testify

How Will the Court Know That My Child Wants to Testify?

According to the California Rules of Court, the following people are required to inform the court if they have information indicating that a child in a custody or visitation matter wishes to address the court:

• Minor’s counsel
• Custody evaluators
• Child custody counselor

Additionally, Rule 5.250 specifies that certain parties to the case and either parties’ counsel may inform the court if they have information that shows a child’s desire to testify. In the absence of information from any of these entities, the judicial officer may inquire from the parties as to whether the child wishes to testify.

There is no requirement that a child be informed of his or her right to express a wish to address the court. Furthermore, neither party is obligated to inform the court of the child’s wish to address the court, nor is the judge required to inquire whether the child wishes to address the court.

Call Wallin & Klarich Today

At Wallin & Klarich, we understand how difficult a child custody battle may be. It is important to determine whether you would like your child to testify in your case. For this reason, it is crucial that you seek the assistance of an experienced family law attorney immediately. Our knowledgeable attorneys at Wallin & Klarich have over 30 years of experience successfully helping our clients with child custody issues. Let us help you today.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our knowledgeable attorneys are available to help you no matter where you are located.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

^{1. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=03001-04000&file=3040-3049↩}

^{2. http://www.courts.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_250↩}

^{3. http://law.onecle.com/california/family/3042.html↩}