CHILDREN TESTIFYING

One of the most common issues that arises in a Child Custody case in the Sacramento Family Court is the issue of a child's preferences regarding which parent he or she wants to live with. Many Parents will want to know if their children will be allowed to testify about their wishes in a Custody Case.

     The general rule regarding this subject can be found in California Family Code §3042(a). This Family Code Section states that if a child is of sufficient age and maturity to form a reasonable opinion, the Court must consider and give due weight to the Child's preferences.

     The most common opportunity for a child to express their opinion is during the Parent's mediation appointment at Sacramento Family Court Services. The Family Court Mediator will typically interview all children at the age of five and older. This interview will be conducted outside the presence of the parents. The wishes of the children are usually reported by the mediator in the Family Court Services Mediation Report. This is the document that will be submitted to the Judge for the Court to base a Child Custody decision on.

    The advantage of having the children interviewed by a Mediator is that the children are isolated as much as possible from the Parent's custody dispute.

     The issue of a child's ability to come to court and actually testify in open court at the Sacramento Family Court has recently been addressed by the State Legislature.

     The new rule is in Family Code §3042(c). This code section states that if a child is 14 years old or older and wishes to testify in Court, the Judge must allow the child to testify unless that Judge decides that it would not be in the child's best interest.

     If the child is under the age of 14, the Judge has the decision to allow the child to testify or not depending on what the Court believes is in the best interest of the child.

     The most important issue for the Court in allowing a child to testify is that the Judge must always control the testimony of the child in order to protect the child. The Judge will always look to find the safest and least stressful way for the child's preferences on custody to be heard.