Until now, the law in California regarding a child's ability to address the court in his or her parents' custody case has been very limited, and rarely are children able to testify. Courts have typically heard the child's perspective through reports, or from third parties, such as the court-appointed mediators or sometimes therapists.
The California legislature has approved amendments to this process under Senate Bill AB 1050. The new law, which amends California Family Code §3042 is effective January 1, 2012, modifies the rules about children speaking to the court and give children a greater voice in their custody preferences.
"If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation," states Amendment (a) of AB 1050.
Under AB 1050, new procedures will require a court to allow a child to address the court directly regarding his or her preferences, if a child is age 14 or older and so wishes, unless the court determines that doing so is not in the child's best interests (and in that case, the court must state its reasons on the record). If, under the new law, the court precludes a child from testifying in the matter, the court must then provide alternative means of obtaining input from the child and other information regarding the child's preferences (California Family Code §3042(e)).
The new law also clarifies that the court can take into account a child's preferences for child custody and visitation. And the law permits any of several individuals to assist a court in determining whether a child wishes to address the court, including a child's own appointed counsel, an investigator, a mediator, custody evaluator, either parent, or either parent's attorney. The judge may also inquire about whether the child wishes to address the court.
AB 1050 does not prevent a court from allowing a child under age 14 to address the court if the court deems it appropriate, but there is no requirement that the court allow a child to do so.
This provides much more opportunity for mature children to have their preferences heard and to be taken seriously when it comes to matters of custody and visitation, important issues in children's lives.
For more information about the amendments to California Family Code §3042 or any other family law matter, please contact Lorna jaynes by calling (510) 795-6304, or visit the website at www.lornajaynes.com.