Last month I wrote about the new Family Code statute which mandates courts to take testimony from a minor child 14 years of age or older in custody cases, if the child wishes to do so. Recently, I attended a legal seminar regarding this new statute, and other forms of evidence, which was presented by a panel of family law judges. It was interesting to hear the opinions of the judicial officers. They were unanimous in their views. They do not like this statute and made it clear they will look unfavorably to the parent who attempts to present such evidence.
For example, comments were made about receiving a handwritten letter from the minor child, or a declaration (written testimony) from a child, which accompanies the paperwork filed by one of the parents. The judges were adamantly opposed to the presentation of such evidence. In fact, comments were made that this may be a form of child abuse in and of itself.
The question becomes, what should you do if your child has expressed an interest in speaking with the court to express his/her own desire? First of all, make certain YOU are not the person suggesting the child ask to testify. If your child approaches you, unsolicited, then proceed, but do so with caution. One way to handle it would be to ask that minor’s counsel be appointed. Minors’ counsel is an attorney appointed by the court, but paid for by you and the other parent, to represent the children. Minors’ counsel, could then make suggestions to the court as to the process for taking testimony. Another way to handle it would be through Family Court Services, which is an agency utilized by the courts to assist them with garnering facts, and trying to get the parties to reach agreements concerning the children. The mediator through Family Court Services can speak with the child and then make suggestions to the court about how to handle the testimony of the child.
The message here is to tread very lightly when it comes to suggesting that your teenage child be allowed to testify, or in presenting the testimony with your documents. The way the evidence is presented is extremely important to your case. The court will always be looking out for the best interest of the child, as they see it. You may think you are sending a message to the court that you are the better parent, by presenting a declaration or letter from your child. However, the court may see it differently.
Having a child testify, no matter what their age, and no matter what California law mandates, is rarely a good idea. The courts do not like to see children involved in the litigation process. However, recognizing that there are exceptions to the rule, the way it is presented may in and of itself be pivotal to your case.
By Pamela Edwards-Swift, Certified Family Law Specialist