Family Code Section 3042 gives the power of the child to tell the court which parent he or she wants to live with. It is a very powerful tool used very carefully by courts. There are a couple of steps to the law and I have given them below. Click here for the actual statute.
Sufficient Age Requirement
Generally speaking the child has to be at least 14 years old in order to testify in court. This does not mean that children under 14 years cannot testify. If the child is less than 14 years, then the judge must approve the ability to have the child testify based on whether this testimony is in the child’s best interests. If the child is 14 years or older, then it is much easier for him to speak as long as doing so is not in the best interests of the child. In either case the judge will have to make a finding.
Once this part is taken care of then the judge may take preference testimony of the child. The next question becomes where and how to do it. Evidence Code Section 765 gives the judge the ability and authority to oversee the process to make sure there is no harassment done against the child. The judge may either take testimony in chambers or in court but close it off to members of the public.
There are a variety of ways of getting the information out from the child besides taking preference testimony. California Rule of Court 5.250 gives many means of obtaining the child’s testimony such as Family Code Section 3190 counseling, using a child custody evaluator, or appointing minor’s counsel.
One common tool is using family court services to interview the minor under the Parenting Plan Assessment I evaluation. The representative interviews the child, each parent separately, and calls collateral people such as teachers and therapists before making the report. In the afternoon the interviewer brings the report to the judge and may testify under oath. The recent Parenting Plan Assessment II option is a two day process that is a more extensive interview. This option is seldom used but is appropriate for move away cases, allegations of child abuse, and in cases with a history of child abduction.
Children can therefore testify in court but it is not an easy process. To find out more information, contact an attorney.
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The Law Offices of Levon Kevorkian is a boutique firm located in Pasadena, California handling Divorce, Child Custody, and Criminal Defense matters. Our office is located at 1055 E. Colorado Blvd. Fifth Floor, Pasadena CA 91106.
Disclaimer: This blog post, and other blog posts by me, are not meant to be legal advice. No attorney-client relationship will be formed by these blog posts.