Child Witnesses in Divorce Cases with Disputed Custody Issues
Should judges making custody determinations by listening to the kids? These days this is a hot topic in Family Law. Years ago the answer to the question was an emphatic “no”. Children were unreliable witnesses, they did not know what was good for themselves, and they would be traumatized forever by being asked to choose one parent over the other. Moreover, they would figure out that they were in a position to control the outcome, which would turn the parent-child relationship upside down.
Those propositions are now losing ground to the proposition that children have rights, among them the right to have a say in what happens to them when Mom and Dad decide to part company. Where that proposition came from is a long and complicated story. We only need to observe that for several generations “rights” have been multiplying in society, so children were bound to acquire their share sooner or later.
The new conventional wisdom took a major step forward this year with amendments to the Family Code. Under prior law, a judge had absolutely no obligation to listen to kids in a divorce, and almost always refused to do so if asked. If he felt like it, the judge could listen to kids “of sufficient age and capacity” but judges seldom did. When they did, the judges typically took the kids into “chambers,” a judge’s private office, for a private chat. The parents and their attorneys cooled their heels in the court room, along with the court reporter. None of them knew what the judge asked the child or what the child said in reply.
Now, with the recent changes to the Family Code, if a child over 14 wishes to address the judge, the judge must let the child express his or her views unless the judge determines that doing so is not in the child’s best interests. If the judge does not allow the child to express his or her views, the judge must state his reasons on the record and provide some other way of finding out what the child has to say. As for children under 14, they may address the judge if the judge determines that doing so is “appropriate pursuant to the child’s best interests.”
The judge of his own accord may also ask if the child wishes to express a preference. Lastly, Mom or her attorney, and Dad or his attorney, can start the ball rolling by indicating to the judge that the child wishes to express his or her desires. It also appears that the parties’ attorneys and the court reporter must now be present if the judge decides, to hear the child’s testimony in chambers.
Comparable amendments were made to the role of “minor’s counsel,” an attorney appointed to represent a child. Instead of making a custody or visitation recommendation to the court, minor’s counsel is now supposed to gather evidence and present it to the court just like an ordinary attorney representing an ordinary client. The logical result seems to be that the child takes the witness stand, testifies in response to questions asked by minor’s counsel, and then undergoes cross-examination by the parties’ attorneys.
To experienced family law attorneys all of this sounds like a radical change. For criminal and civil attorneys, children’s testimony is normal. In criminal and civil cases, child witnesses frequently testify and undergo cross-examination.
The consequences of these changes to the Family Code are impossible to predict. However, with children’s testimony now virtually mandatory for children over 14, we can expect that children will want to make their desires known to the court. We can also expect that they will be urged to do so even if they don’t ask for the opportunity of their own accord. Parents who believe that their children will testify in their favor may also be expected to instruct their attorneys to call the child as a witness. Similarly, a parent’s attorney who believes the same thing can be expected to advise his client that the child must be called. Otherwise the attorney will run a high risk of a malpractice action brought against him when the other parent “wins” the contest.
San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.