Child Witnesses in Divorce

Child Witnesses in DivorceShould judges making custody determinations by listening to the kids?  These days this is a hot topic in Family Law.  Years ago the conventional wisdom’s 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.

A new conventional wisdom is now gaining the upper hand over the old one (in substance): 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 like rabbits all over the place, so children were bound to acquire their share sooner or later.

Child Witnesses in Divorce

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 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 makes that determination, the judge must state its reasons on the record.  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.”

Child Custody Disputes and Child Visitation

the judge precludes the calling of any child as a witness, the judge must provide “alternative means of obtaining input from the child.”  The judge of his own accord can 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 do so.  It also appears that the parties’ attorneys and the court reporter must now be present if the judge decides, as he still may decide, to hear the child’s testimony in chambers.

Comparable changes were made to the role of “minor’s counsel,” an attorney appointed to represent a child.  Previously minor’s counsel was supposed to find out what the child wanted, among other things, and make a custody/visitation recommendation to the court.  The recommendation part is now gone.  Instead minor’s counsel is 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.

Children in Court

All of this sounds radical to experienced family law attorneys.  For criminal and civil attorneys, it sounds normal.  In criminal and civil cases, child witnesses frequently testify and undergo cross-examination.  In family law cases, the long run consequences of these amendments to the Family Code are impossible to predict.  However, with children’s testimony now virtually mandatory for children over 14, it is difficult not to expect that in high conflict custody disputes children will be testifying all of the time.  Children will ask to be heard when they find out, as they assuredly will, that they have a right to heard.  An aggressive parent, with confidence that his child will testify favorably on his behalf, can be expected to instruct his attorney 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.

Insistence on children’s rights in the pursuit of legal perfection may be a Pandora’s box.  Be careful what you wish for.

San Diego Divorce Attorney Stanley D. Prowse welcomes your legal inquiries.

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