The Child as a Witness in Dissolution Proceedings

Clients often ask whether their child will have to choose which parent he or she wants to live with after the divorce. As with most legal questions, the answer is—It depends. While a child is not required to express to the court his or her preference or to provide any input regarding custody or visitation, there is also nothing in the Family Code that prohibits a child from expressing an option regarding custody or visitation.

It is rarely in a child’s best interests to testify as a witness in a dissolution for the purpose of giving evidence against a parent or stating a preference when it comes to custody and visitation. The damage done to the child’s relationship with one or both parents, as well to the child’s psyche, is undeniable and should be avoided whenever possible. In order to limit the potential damage to the children, Fam. Code §3042 in conjunction with California Rules of Court 5.250, provides a framework for the court to obtain information regarding the child’s preferences in custody proceedings without requiring them to testify in court. For example, the court may appoint minor’s counsel, a custody evaluator, an investigator, or a mediator to interview the child and provide recommendations to the court. See Family Code Section 3402(f) and In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 38 Cal.Rptr.3d 610, 127 P.3d 28. If during these interviews the child tells the expert that they want to address the court in the pending action, the expert must inform the court that the child would like to address the court. This is an important distinction since a party or party’s attorney may, but is not required to, notify the court of the child’s desire to address the court. (CRC 5.250(a) (1) and (2))In the absence of information indicating a child wishes to address the court, the judicial officer may inquire whether the child wishes to do so. (CRC 5.250(a) (3))

Once the court is made aware of the child’s desire to be heard, the court must find a balance between 1) protecting the child, 2) the statutory duty to consider the wishes and input from the child and 3) the probative value of the child’s input while ensuring all parties’ due process rights to challenge evidence relied upon by the court in making custody decisions. (See CRC 5.250)

Before the court allows the child to testify or address the court, it must first determine whether it is in the child’s best interest to do so. If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record. A child who is less than 14 years of age is not prevented from addressing the court, so long as the court determines doing so is in the child’s best interests. In making this determination, the court must consider the following: (a) Whether the child is of sufficient age and capacity to reason or form an intelligent preference as to custody or visitation (parenting time); (b) Whether the child is of sufficient age and capacity to understand the nature of testimony; (c) Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court; (d) Whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision-making process; and (e) Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so.

If the court determines that calling the child as a witness is not in the child’s best interest, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences, including recommending mediation, evaluations, and appointing minor’s counsel, all of which allow the child to state his/her preference regarding custody, visitation and relocation cases. The information obtained from the child shall be filed in a confidential portion of the family law file.

If the court determines that the child should be allowed to testify, the court must then determine whether the court room will be public or private, who can be present when the testimony is taken, how the child will be questioned (i.e., will the judge ask the questions submitted by the parties or will the attorneys be allowed to ask the child questions) and whether a court reporter will be present to record the testimony. The court must also take steps to protect the child from harassment or embarrassment and ensure the questions are appropriate for the child’s age and cognitive level.

Although the court is required to consider and give due weight to the wishes of the child, those wishes are not conclusive on the issue of the child’s best interests. (See Adoption of Michael D. (1989) 209 Cal.App.3d 122, 135, 256 Cal.Rptr. 884.) To the extent the court decides consideration should be given to preferences of children as to custody, such preferences are entitled to greater consideration in a modification proceeding, as here, than would be appropriate in an initial custody determination. In the latter circumstance there will usually be considerable uncertainty as to how a future arrangement will work out, while in the former the child has lived with the arrangement and can have a more informed basis for his or her preference. (See In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, 224 Cal.Rptr. 250, disapproved In re Marriage of Burgess (1996) 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473.) Both Rosson and Burgess are move-away cases where the preferences of the child are one of the factors to be considered in determining custody and visitation when one parent decides to move out of the area. In these cases, as with most custody and visitation cases, the parents usually agree that it is not in the child’s best interest to testify or address the court and the children’s preferences are determined through recommending mediation or custody evaluation. For the other cases, we must rely upon the court to act in the best interest of the child when making decisions about whether to allow a child to testify in dissolution proceedings.