In California, there is no specific age at which a child can testify in divorce court. Instead, the decision is left up to the judge, who will consider the child’s age, maturity level, and ability to understand the proceedings.
California law allows a child to testify in court if they are competent to do so. Competency is determined by the judge and involves assessing the child’s ability to understand the difference between truth and lies, to remember and recount events accurately, and to communicate effectively.
If the judge decides that a child is competent to testify, they may ask for the child’s input and be asked to provide information about their preferences for custody or visitation arrangements.
However, the judge will generally balance the child’s wishes against other factors such as the child’s best interests, other child custody preferences, the ability of each parent to care for the child, and any potential harm to the child if they are placed in one parent’s custody.
It’s worth noting that in some cases, the judge may decide that it is not in the child’s best interests to testify. In these situations, the judge may appoint a guardian ad litem or another professional to represent the child’s interests in court.
How did the Court determine if a Child is Competent or Not?
A judge may determine that a child is not competent to testify in divorce or family court proceedings if the child is too young or lacks the cognitive ability to understand the difference between truth and lies or to remember and recount events accurately.
Some alternative factors that may cause a judge to decide that a child is not competent to testify include:
- Intellectual or developmental disabilities that affect the child’s ability to communicate effectively or to understand the proceedings
- Emotional or psychological trauma may make it difficult for the child to participate in the legal process without causing further harm
- Pressure or coercion from one or both parents to provide certain testimony
- Concerns about the child’s safety or well-being if they were to testify in court
In such cases, the judge may appoint a guardian ad litem or another professional to represent the child’s interests in court or may consider alternative means of obtaining information about the child’s preferences and needs.
In a divorce or custody hearing, a child’s wishes may be one factor that the court considers when making a decision about custody or visitation arrangements.
However, the weight given to the child’s views and wants will depend on a number of factors, including the children’s age, maturity level, and ability to understand the proceedings.
The child’s choice may be one of several factors that the court considers in understanding what is in the child’s best interests. Other best-interest factors may include:
- The child’s relationship with each parent
- Each parent’s ability to care for the child
- The child’s physical, emotional, and school needs
- The child’s ties to their community and school
- Any history of domestic violence or abuse
If the child is old enough and mature enough to express wishes, the judge may consider the child’s wishes, but the court will balance the child’s desires, against the alternative factors listed above.
The judge’s chambers may also take into account any pressure or coercion that may have been applied to the child to influence their wants.
Ultimately, the court will make a custody determination that is in the best interests of the child, based on all of the available evidence and legal considerations.
Can the Child be Cross-Examined?
In California, children who are called to testify in a divorce or custody proceeding may be subject to cross-examination by the other attorney is given.
However, the court will generally take steps to ensure that the child’s testimony and cross-examination is conducted in a manner that is appropriate for the child’s age and maturity level and that protects the child’s emotional state.
When a child is called to address the court, the judge may order that the testimony be conducted in a closed courtroom, meaning that only the child interview center judge, attorneys, and necessary court personnel are present. This can help to reduce the child’s anxiety and discomfort while the child testifies.
During cross-interrogation, the opposing attorney may ask the child questions about their testimony, their relationship with their parents, or other relevant issues.
The judge will generally control the questioning to ensure that it is not abusive, harassing, or intimidating to the child. The judge may also limit the length or scope of the cross-interrogation to protect the child’s emotional well-being.
It’s important to note that the decision to allow a child to testify and to subject them to cross-interrogation is a serious one, and the court will only do so if it is necessary to resolve a dispute and is in the best interests of the child.
If the child is too young or too emotionally vulnerable to testify, the court may appoint a guardian ad litem or other professional to represent the child’s interests in court.
California Family Code Section 3042
The section of the California Family Code that addresses the testimony of children in divorce or custody proceedings is section 3042. This section sets forth the procedures that the court must follow if a child is called to testify in a family law case.
Family Code section 3042 provides that if a child is of sufficient age and capacity to reason, the court shall permit the child to testify if the child so desires, unless the court determines that doing so would not be in the child’s best interests.
The section also provides that the court may not require a child to express a preference for custody or visitation.
Section 3042 also requires the court to consider the child wishes, along with alternative factors such as the child’s lifetime, maturity level, and ability to understand the proceedings, in making a custody determination. The tribunal is also required to state on the record the reasons for its guardianship decision.
It’s important to note that the requirements of section 3042 apply only in cases where the child is of sufficient age and capacity to reason, and where the tribunal determines that the child’s testimony would be in their best interests.
In cases where the child is too young or too emotionally vulnerable to testify, the tribunal may appoint a guardian ad litem or other professional to represent the child’s interests in the tribunal.
California Custody Proceedings
The essence of a child custody case is companionship of child and right to make decisions regarding his care and control, education, health, and religion. Lerner v. Superior Court of San Mateo County (Cal. Mar. 25, 1952), 38 Cal. 2d 676, 242 P.2d 321
It’s important to note that guardianship and divorce proceedings often can be complex and emotionally challenging, and it’s always a good idea to consult with an experienced family law attorney if you are involved in a guardianship dispute.
Below are the steps for custody proceedings:
- vFiling for Custody: The first step in a custody hearing is for one of the parents to file a request for guardianship with the court. This is typically done as part of a divorce or legal separation proceeding, but it can also be done independently.
- Initial Custody Order: Once a request for guardianship has been filed, the court will typically issue an initial guardianship order that establishes temporary guardianship arrangements until a final guardianship determination can be made. The initial order may also address other issues, such as visitation and child support.
- Mediation or Evaluation: In many cases, the court will require the parents to participate in mediation or to undergo a guardianship evaluation. Mediation is a process in which the parents work with a neutral third party to try to reach an agreement on parental rights and visitation issues. A guardianship evaluation involves a more formal investigation of the parents and child, typically conducted by a mental health professional, and may involve interviews, psychological testing, and home visits.
- Custody Hearing: If the parents are unable to reach an agreement on guardianship through mediation or if a guardianship evaluation is required, the court will hold a guardianship hearing. At the hearing, the guardians will present evidence and arguments in support of their guardianship positions, and the court will make a final determination on guardianship.
- Final Custody Order: Once the court has made a final determination on guardianship, it will issue a final order that establishes the parental rights and visitation arrangements for the child. The order will also address other issues, such as child support, and may be modified in the future if there is a significant change in circumstances.
Who Gets to Choose the Child Custody Evaluator
In California, both guardians are generally required to participate in a guardianship evaluation if the court orders one.
The court typically selects the professional guardianship evaluator, and the evaluator must be a licensed mental health professional with experience in child guardianship issues.
However, in some cases, the parties may be able to mutually agree on a guardianship evaluator. If both guardians agree on a particular evaluator, they can submit a joint request to the court to appoint that evaluator.
The court will consider the joint request, but ultimately has the discretion to select a different evaluator if it deems it necessary.
It’s important to note that guardianship evaluations can be costly and time-consuming, and the parties are typically responsible for paying the costs of the evaluation.
The parties may be able to negotiate how the costs will be divided, but if they cannot reach an agreement, the court will typically allocate the costs based on the parties’ respective financial circumstances.
It’s also worth noting that the court may consider alternative factors in selecting a guardianship evaluator, such as the evaluator’s expertise, availability, and ability to complete the evaluation within a reasonable timeframe.
The court may also take into account any potential conflicts of interest or biases on the part of the evaluator.
Child Custody Mediation
Child custody mediation in California is a process in which guardians work with a neutral third party, called a mediator, to try to reach an agreement on guardianship and visitation issues. Here’s how the mediation process typically works in California:
Process of Child Custody Medication
- Request for Mediation: One of the guardians files a request for mediation with the court or the county’s Family Court Services (FCS) department. In some cases, the court may order mediation even if one or both guardians do not request it.
- Orientation: The guardians attend an orientation session, where they learn about the mediation process and what to expect. The orientation session also provides information about how to prepare for mediation and how to communicate effectively during the process.
- Mediation Session: The guardians attend one or more mediation sessions with the mediator. The mediator is a neutral third party who helps the guardians communicate and negotiate with each other. The mediator does not make decisions about guardianship or visitation; instead, they help the guardians reach an agreement that is in the best interests of the child.
- Agreement: If the guardians are able to reach an agreement on guardianship and visitation, the mediator will help them put the agreement in writing. The agreement is then submitted to the court for approval.
- No Agreement: If the guardians are unable to reach an agreement, the mediator will prepare a written report for the court, which will include recommendations for guardianship and visitation arrangements based on the mediator’s assessment of the welfare of the child. The report is confidential and is not shared with the guardians.
- Court Hearing: If the guardians are unable to reach an agreement, the court will hold a hearing to make a final determination on guardianship and visitation. The tribunal will consider the mediator’s recommendations, as well as any other evidence and arguments presented by the guardians, before making a final decision.
Does the court decide the custodial preference?
In cases where guardians cannot come to an agreement on guardianship arrangements, the court will consider several factors to determine what is in the best interest of the child.
The factors considered may include the age of the child, relationship with each parent, living situation of each parent, and any other relevant factors. Based on these factors, the court will make a determination as to what guardianship arrangement is in the best interest of the child.
It is important to note that the court’s decision may not necessarily be what either parent wants, but rather what is deemed best for the child’s overall well-being.
Custody arrangement and mandatory duty
Consider that the primary consideration in making a custody award is the best interests of the child and, before custody can be modified, there must be a change of circumstances. See, for example, In re Marriage of Leonard (Cal. App. 1st Dist. Aug. 11, 1981), 122 Cal. App. 3d 443, 175 Cal. Rptr. 903.
A custody arrangement and obligatory duty are related concepts but have different meanings.
A guardianship arrangement is a legal agreement that sets out the terms of guardianship and visitation for a child whose parents or guardians are separated or divorced.
The guardianship arrangement determines where the child will live, who will make decisions about the child’s education, healthcare, and other important matters, and how much time the child will spend with each parent.
It is an agreement between the parents or guardians, and it must be approved by a court to become legally binding.
Mandatory duty, on the other hand, refers to a legal obligation that a person or entity is required to fulfill. In the context of guardianship arrangements, mandatory duties typically refer to the responsibilities that each parent or guardian must fulfill to ensure that the guardianship arrangement is properly implemented.
These duties may include paying child support, complying with visitation orders, providing a safe and stable living environment for the child, and making decisions in the child’s best interests.
In summary, a guardianship arrangement is an agreement between parents or guardians that outlines the terms of guardianship and visitation for a child, while mandatory duties refer to the legal obligations that each parent or guardian must fulfill to ensure that the guardianship arrangement is properly implemented.