When divorcing parents cannot agree over child custody and visitation provisions regarding their children, many are left to wonder whether the preferences of the kids themselves should be taken into account. In California, recent changes to the Family Code have specified circumstances under which this can now take place.
The change resulted from recommendations made by the Elkins Family Law Task Force, a panel of family law attorneys, judges and court administrators who regularly consider system improvements, rule changes and enhancements to family court forms. In 2010, the task force recommended more effective child custody procedures to provide a better experience for parents and children.
A key part of this recommendation was to encourage children’s participation in contested divorce proceedings. The task force noted the importance of children’s testimony while recognizing that it can pose difficulties for all parties involved, as well as the potential need in some cases for the court to appoint a separate lawyer to represent a child’s interests.
Those recommendations were codified in 2011 under California Family Law Code section 3042. Relevant provisions include:
- Allowing the court to consider the wishes of a child regarding grants or modifications of custody or visitation if the child is “of sufficient age and capacity to reason so as to form an intelligent preference”
- Permitting all children who are 14 years of age or older to address the court regarding custody or visitation unless the court explicitly determines that this would not be in the child's best interests
- Providing procedures by which parents, their divorce lawyers, evaluators and other parties can inform a family court judge of a child’s desire to express custody or visitation preferences to the court
- Requiring the Judicial Council to establish procedures for examination of child witnesses
New court rules mandated by section 3042 went into effect on Jan. 1, 2012. Important details fleshed out in the rules include provisions to protect children from harassment or embarrassment, as well as giving the court broad leeway to limit parental or public access to hearings where children testify.
Whether a California divorce is to be resolved in court or via the collaborative law process, parents have much to consider in light of changing laws and family court procedures. A custody and visitation lawyer can explain the latest developments and related strategies for helping families through divorce.
* The State Bar of California Board of Legal Specialization