Can My Child Testify in My Custody Case?

Facing a divorce can be difficult enough, but facing a battle over custody can be heart-wrenching. Children in California aren’t required to participate in the court, but neither are they excluded from it. If it’s difficult to come to a custody agreement with your ex-partner, then you’ll likely have to go to court, and you might wonder, “Can my child testify in my custody case?”

In the United States, there were 673,989 divorces in 2022 – the most recent data available. If parents cannot decide on a parenting agreement, then the courts might need to get involved. California has defined how a child can participate in a custody case, along with criteria that make sure testifying would be in the best interest of the child.

When Can My Child Testify in My Custody Case?

In California, if a child is over 14 years old, then the court is required to hear their testimony, but a child under that age is also allowed to be heard. Once the court weighs in, the court will consider whether:

• The child is old enough to understand the implications of the proceedings.
• The child is at risk of emotional distress if denied or given the right to testify.
• The child can provide relevant information to the case.
• There are any other factors for or against having the child testify, including whether they want to or not.

How Does the Court Decide if My Child Can Testify?

The court carefully weighs the welfare of your child and needs to hear from them before deciding whether they should testify or not. Before asking the child to testify, they might ask for:

• Other types of evidence from either the parents or other witnesses
• A child custody evaluator to be assigned to the case
• Information from a child custody counselor
• Information from an interview with the child so that the child doesn’t have to do multiple interviews

If the child doesn’t testify and chooses another option, like those listed above, then the court could require that the information be one of the following:

• The child’s opinion, reflected in writing
• A description of the child’s opinion, in detail
• A spokesperson for the child expressing their wishes

If the child is allowed to testify, the state of California is dedicated to making sure that the child is protected as much as possible. This includes taking special care while questioning the child to ensure they aren’t harassed or asked a number of repetitive questions.

The court might also provide your child with counsel or, at the very least, make sure that the questions are presented in an age-appropriate manner. They also don’t require the child to say what their preferred arrangement would be, but they are allowed to if they’d like.

How California Decides on a Custody Agreement

Approximately 29% of custody cases are solved without mediation or court hearings, and only 4% require a judge’s decision, while 11% need mediation. When deciding on a custody agreement, courts evaluate:

• The child’s age
• The child’s health
• The relationship between the parent and child
• The parent’s ability to care for the child (physically, emotionally, and financially)
• History (if any) of substance abuse and/or domestic violence
• The child’s connection to their school, home, and community

The courts do not give preference to the mother or the father and aren’t allowed to base their decisions on other factors like marital status, sexual orientation, or religion. They do, however, look at the big picture and focus on the interest of the child.

FAQs

Q: Can a Child Testify in a Custody Case?

A: In California, it is legal for a child to testify in a custody case. However, the court will not make the child testify in front of their parents, and the child doesn’t have to participate if they choose not to. In deciding whether to let the child participate in the custody battle, the court will consider the best interests of the child.

Q: What Mistakes Should You Avoid in a Custody Battle?

A: One of the biggest would be to speak badly about your ex-partner, especially in front of the children. Hearing one parent disparage another can be devastating for a child. Except in cases of abuse, the parent should focus on their relationship with their child first and foremost. Other mistakes are:

• Not allowing the child to see the other parent without a reason
• Poor communication
• Ignoring court orders

Q: What Age Can a Child Testify in Court?

A: In California, children of any age are allowed to testify as long as the court deems them able to understand what is happening and if their testimony is relevant to the case. If the child is 14 years old or older and would like to testify, then the court will hear what they’d like to say. A child doesn’t have to testify, and the court can look at other evidence to decipher what their preference might be.

Q: Can Children Make Custody Decisions?

A: Family Code Section 3042 directs the court to give weight to a child’s preference while making custody agreement decisions as long as the child is of an appropriate age and able to form a conscious opinion on the issue. However, the child cannot make the final decision since the court looks at multiple factors while making the custody decision.

Contact Paula D. Kleinman, A Professional Law Corporation

Paula D. Kleinman has over 25 years of legal experience and is prepared to advocate for you. She understands the deep impact that divorce and custody battles have on children and their parents, so she will be compassionate, understanding, and a powerful ally. The team at Paula D. Kleinman, A Professional Law Corporation, will be able to help you navigate this difficult time with care and will mediate the situation on your behalf.

She will prepare you for the challenge ahead and make sure your voice and the voice of your child are heard. Contact us today to schedule your consultation.