Child Custody and the Testimony of a Child Witness Where Child is Asked to Give Their Preference

(1) [11:542] Additional “best interests” safeguard in custody/visitation litigation seeking child's preferences: In addition to the requirements of Ev.C. § 765(b) (above), special standards are uniquely applicable when a family court is asked to consider the child's preferences in custody and/or visitation litigation. Broadly, the court “shall control” examination of the child witness so as to protect his or her best interests. [Fam.C. § 3042; see Fam.C. § 3042(a), (b)]

A child at least age 14 “shall be” permitted to address the court to express his or her wishes unless the court determines (stating its reasons on the record) that doing so is not in the child's best interests. Conversely, nothing in the Code prevents a child under age 14 from addressing the court regarding custody or visitation if the court determines that is “appropriate pursuant to the child's best interests.” [Fam.C. § 3042(c), (d)]

If the family court precludes the calling of any child as a witness, it must provide “alternative means” of obtaining the child's input regarding the child's custody/visitation preferences. [Fam.C. § 3042(e)]

Cross-refer: The procedures for examining child witnesses, including guidelines for obtaining a child's input by means other than direct testimony, are discussed in detail at 7:324 ff.

  • Requiring the parties' children to testify in open court and subjecting them to examination and cross-examination inevitably puts them in the position of taking the side of one parent against the other. For that reason, the preference should be to obtain the child's input by way of private in-chambers consultations with the judge in a nonadversary atmosphere and/or through a recommending counselor's or custody evaluator's, or the child's separate counsel's (if any), report to the court.
  • Most family law judges have their own approaches to the handling of child witnesses. Some routinely require that any and all such questioning take place “on the record” in the judge's chambers, with or without counsel (as the case may be). [See, e.g., Marriage of Rosson(1986) 178 CA3d 1094, 1100, 224 CR 250, 254, fn. 5 (disapproved on other grounds in Marriage of Burgess (1996) 13 C4th 25, 38, 51 CR2d 444, 454, fn. 10)]
  • If you do not represent a child witness, be very careful about meeting with him or her. In “high conflict” cases, doing so may result in the other parent noticing your deposition, requesting your disqualification or, worse, seeking redress against you for interference with parental rights (a viable tort action). If you do choose to meet with the child, remember that any statements made by your client during the conference are probably discoverable since he or she will have waived the attorney-client privilege by having the child present.

In awarding custody of a minor child of divorced parties, it is proper, with the knowledge and consent of the attorneys for the parties, for the judge to question the child himself, and information obtained from such questioning constitutes evidence in the case. 

It is not mandatory that court consider preference of child in determining custody question

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