New Law: Teenagers Testifying in Custody Matters

This week (January 1, 2012 to be exact) marks the effective date of a new law allowing children 14 years or older to provide input on custody or visitation matters in family court.

Specifically, the amendments to Family Code Section 3042 provide that the 14 or older child “shall be permitted” to address the court unless the judge determines that doing so would not be in the child’s best interest.

There has been a great deal of discussion in the family law community about whether the potential benefit of child testimony outweighs the potential detriment to the child and the parent/child relationship. In nearly 10 years, I have only had one instance where a judge received testimony from a teenaged child (age 16), and this was done in chambers.

Under this new law, child testimony could be heard in open court but the law provides protections to assure that the child’s testimony can be open and honest including closing the courtroom to the public, or taking testimony in chambers, and determining who can be present during the testimony.

It is important to note that this law is not a guarantee that your 14-year-old can testify. The judge can disallow the testimony and seek other means to obtain input from the child such as having the child participate in custody mediation, or a custody evaluation, or other reasonable means.

Lastly, the law does not prohibit a child under the age of 14 from testifying if the judge determines the testimony to be in the child’s best interests.

It will be interesting to see how these new laws and rules are handled in practice in 2012. View Family Code Section 3042. View California Rules of Court, Rule 5.250.