Opinion of Children in Custody and Visitation Disputes

Many Del Mar divorce proceedings will inevitably impact the children of the parties. The San Diego Family Court judges make decisions regarding where the child will live, with which parent the child will live, visitation, and even the financial support the child is to receive. Thus, parents may wish to introduce evidence regarding the child’s wishes. However, this is a difficult subject for the court to broach. As we have previously blogged, divorce has a tremendous impact on children. Some argue that dragging children into court further traumatizes them by forcing them to decide between their parents thereby creating lasting feelings of betrayal and guilt.

Under California Family Code section 3042, “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.” According to the Code, whether a child will be permitted to testify is evaluated on a case-by-case basis. If the court determines that testifying is not in the child’s best interest, the court shall state its reasons for that finding on the record. Although this provision specifically addresses children over the age of 14, children under 14 are not categorically disqualified. However, before a child under the age of 14 will be permitted to testify, the court must conclude that testifying is in the child’s best interest.

If a San Diego family court judge refuses to allow a child to testify in court, the child’s opinions and wishes are not dismissed entirely. In order to obtain the child’s input and information regarding his or her preferences, the court can use appropriate alternative means. In determining whether the child wishes to express his or her preferences, a minor’s counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge shall indicate that the child wishes to address the court. In the absence of this indication, the judge may make an independent inquiry. Additionally, a party or his or her attorney may indicate to the judge that the child wishes to address the court or address the judge.

Although a child is permitted to testify in family court proceedings regarding custody or visitation, nothing in the family code requires a child to express to the court his or her preferences or provide any other input regarding the proceedings. As always in family law, the paramount concern is the best interest of the child. In evaluating whether addressing the court is in the child’s best interest, the court should consider the following: (1) the age and capacity of the child to reason to form an intelligent preference as to custody or visitation, (2) whether the child is of sufficient age and capacity to understand the nature of the testimony, (3) 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, (4) whether the subject areas about which the child is anticipated to address are relevant to the court’s decision-making process and (5) any other relevant factors taking into consideration the child’s desire to testify.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego to meet with Andrew J. Botros or Matthew S. Blado.