Prior to the passage of Senate Bill AB 1050 recently approved by the California legislature, the children of parents in custody battles have rarely been able to testify in court. Court’s typically obtain information from the child through third parties, commonly court appointed mediators who are often marriage and family therapists. Senate Bill AB 1050 which goes into effect January 1, 2012 amends California Family Code § 3042 and gives children a greater voice regarding their custodial preferences.
Existing law prior to AB 1050 required family courts “if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children” in making custody orders.
AB 1050, however, states that “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.”
Pursuant to this law, there will be new procedures that require a court to allow a child to testify directly to the court regarding his or her preferences, if a child is 14 or older, unless the court determines this would not be in the child’s best interests. The court must state on the record why such testimony would not be in the child’s best interest. The law does not prevent courts from allowing children under 14 from testifying but there is no requirement that it do so.
Hopefully, this will be positive and will provide an opportunity for greater clarity and understanding and will be beneficial for children. However, as with most well intentioned laws, this could well be misused and create more conflict and parental alienation.