Will Children be Testifying in Court on Custody Issues?

By: Jill L. Barr

The legislature enacted a law in 2010, AB 1050, which included changes to Family Code Section 3042. Family Code Section 3042 stated, prior to the revisions which take effect on January 1, 2012, that the court "shall consider, and give due weight to the wishes of the child in making an order granting or modifying custody." It is fair to state that most courts, prior to the changes being made to the statute, rarely heard directly from children on issues of custody and visitation. Children's preferences as to custody and visitation have always been an important factor to consider, however, the information was usually provided to the court through other methods other than hearing directly from children, such as mental health professionals who interviewed or evaluated the children and family. The legislature was concerned that children's voices were not being adequately heard and made changes to the law.

The changes to Family Code Section 3042 include a provision which states that if a child is age 14 or older and wishes to "address" the court, the child shall be permitted to do so, unless the court determines that doing so is not in the child's "best interests."

It is unknown whether "addressing" the court equates to a child actually taking the witness stand in front of his or her parents. Most likely, the courts will still attempt to obtain the preferences of the child as to custody and visitation through means other than the child directly. It is likely, however, that we will see more requests in custody litigation for Judges to hear directly from children.

Jill L. Barr is a Partner with Kring & Chung, LLP's Sacramento, CA office. She can be contacted at (916) 266-9000 or jbarr@kringandchung.com.