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.

FAMILY COURT SERVICES

     One of the biggest issues regarding clients going through a Divorce or a Child Custody matter is the issue of which parent will have custody of the children. In a Sacramento Family Court case this matter will usually be handled by the office of Sacramento Family Court Services.  This department is often referred to by Judges and Attorneys as "FCS".

     The California Family Code requires that parents mediate their custody dispute before the matter goes before the Judge. The Sacramento Office of Family Court Services is located on the First Floor of the Sacramento Family Court House and is the office where parents are referred to mediation before their court date.

     When a Request for Orders is filed by a parent requesting a court date for a custody hearing, a copy of the papers is sent to the FCS office and an appointment for a mediation appointment is than set. This appointment will generally be about two weeks before the date of the court hearing.

     It is mandatory that both parents attend the Family Court Services appointment.  It is also a requirement that children age five and older be brought to the mediation appointment. The mediator will be able to speak to the children regarding their wishes. A parent will have the option of meeting with the mediator alone if they are protected by a Domestic Violence Restraining Order. The parents will typically meet jointly with a mediator and attempt to work out an agreement regarding the parenting schedule of the children. The FCS mediators are very well trained and are often of great assistance to parents in working out an agreement.

     If the parents are able to work out a complete agreement, it will be typed up by the mediator and sent to the court file before the hearing. The Judge can than adopt this agreement as a Custody Order.

     If the parents are not able to come to an agreement, the mediator will write up a specific custody schedule as their recommendation to the Judge.  The Family Court Services mediator will often make outside contacts regarding the children with people who can provide the mediator with more information. These contacts may include the children's school records, their counselors or even Child Protective Services.

     The Court will decide whether to adopt the report in whole or part. If one parent does not agree with the recommendation, than they have the right to have the matter set for Trial.

     This would be a hearing where the parents can present evidence and witnesses to the Court in an attempt to have the recommendation either adopted or rejected by the Court. The Mediator would usually offer testimony as to the basis for their recommendations as being in the best interest of the children.

     No one looks forward to a court issue regarding child custody. It is often a stressful experience for all parties involved. However, most parents will agree that they have a positive experience with the process and staff at Sacramento Office of Family Court Services.