Steven Fernandez |

General Blog

No statute or court rule requires a child to testify in a California custody proceeding. (Court, rule 5.250(a).) However, if a child wishes to address the family law court, how does the judge decide whether to consider child’s custody preferences. California Family Code section 3042 confers on children “of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation” a limited right to address the court in custody proceedings.

If the child is 14 years of age or older and wishes to address the court regarding custody and visitation, the child must be permitted to do so, unless the court determines that doing so is not in the child’s best interests. (Family Code section 3042(c).) Similarly, if a child is under the age of 14 and wishes to address the court regarding custody or visitation, the court may deny the child’s request “if the court determines that is appropriate pursuant to the child’s best interests.” (Family Code section 3042(d).)

California Rules of Court, rule 5.250 is the implementing statute for Family Code section 3042. California Rules of Court, rule 5.250(b) addresses how the court will be informed of a child’s wish to address the court. Specifically, minor’s counsel, custody evaluators, child custody investigators, and child custody counselors must inform the court if they have information indicating that a child in a custody or visitation (parenting time) matter wishes to address the court.” (California Rules of Court, rule 5.250(b)(1) (emphasis).) 

Similarly, a parent or parent’s attorney “may inform the court if they have information indicating that a child in a custody or visitation (parenting time) matter wishes to address the court.” (California Rules of Court, rule 5.250(b)(2) (emphasis).) And the judge “may inquire whether the child wishes to do so.” (California Rules of Court, rule 5.250(b)(3) (emphasis).)

Unfortunately, nothing in these procedural rules obligates any custody professional, party, attorney, or judicial officer to inform the child of his or her right to indicate a wish to address the court, leaving one to wonder, how are children supposed to become aware of these rights?

Since no neutral party is required to inform the child regarding his or her right to indicate a wish to address the court, one can reasonably assume that when an interested professional or party so informs the child, such disclosure is likely made in the informing party’s best interest, not necessarily the child’s.

Moreover, even if a child indicates to a party or party’s attorney a wish to address the court, neither is obligated to inform the court of the child’s wish, and the court is not required to inquire (and often does not) whether the child wishes to address the court. And even when the court is informed of the child’s wish to address the court, the court is not obligated to permit the child to do so.

Family Code section 3042(a) states in pertinent part,

“If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” (Family Code section 3042(a) (emphasis).)

While Family Code section 3042(a) requires that the court “consider” and“give due weight” to the child’s preferences in making an order granting or modifying custody and visitation, the court’s subjective perception of the child’s maturity level may be a substantial factor in how much weight the court actually gives to the child’s preference. Under current case law, maturity is determined on a case-by-case basis, (Marriage of Rosson(1986) 178 Cal. App. 3d 1094, 1103.) and the court is not obligated to follow the child’s wishes in making an order for custody and visitation. (Marriage of Mehlmauer (1976) 60 Cal. App. 3d 104, 110.) Ultimately, the court is vested with broad discretion in determining whether to allow a child to address the court, and if so, how much weight to give the child’s preference.

Under current law, a teenage child can more effectively voice his or her preference through conduct. For example, in Marriage of Coursey, the court held that the trial court was mistaken when it found that the mother had the ability to force her 14-year old daughter to visit the father when she refused to do so, and therefore, the mother could not be held in contempt of court for purportedly violating the court’s visitation order. (Marriage of Coursey (1987) 194 Cal. App. 3d 147, 154-155.)

In Coursey, the appellate court states,

“Common experience tells us we may not merely assume without proof that a mother can reasonably compel a teenaged daughter to visit against the daughter’s strong wishes. Here, the question whether the mother could reasonably compel her daughter to visit depended on proof of the circumstances surrounding the contemplated visit, including the relationship between the parties and their attitudes vis-à-vis the visit.” (Id., page 155 (emphasis).)

The practical reality is that a teenage child may have far more power expressing his or her preference through conduct under Coursey than by attempting to exercise his or her Family Code section 3042 rights. This probably isn’t the result the Legislature was looking for when it enacted Family Code section 3042.

Family Code section 3042 should be amended to confer children, and especially teenagers, with an absolute right to address the court in custody proceedings, and children must be independently educated regarding these rights.

Courts should be required to give weight to the child’s preference. Until this happens, courts will continue to render important custody decisions without considering the preference of the child. California Family Code section 3042 must strike a balance that facilitates the child’s right to address the court while still protecting the best interests of the child.

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