Age 14 The California Legislature has made edits to Family Code §3042 that might actually answer child custody question California divorce attorney’s get asked repeatedly: will the Court hear that my son/daughter/children want to be with me and not the other parent? The new and improved Family Code §3042 refers to children of 14 years of age or older, and sets up a default position, that over age 14 children will be allowed to address the Court. The Court must make findings on the record that it is not in the child’s best interests to address the Court if the Court wants to stop this from happening. Because the edits to the statute are recent, it is currently unclear just how often Family Court Judges will allow the children to essentially take the witness stand against one or potentially both of their parents. Probably, the procedure will be muted in some manner, since the possibility of a child being cross examined by their parents after saying they prefer mom over dad, or vice versa, will quickly run contrary to a long standing public policy goal in Family Law: the effort to keep the children from being put in the middle of the divorce process. It is hard to see how they would not be in the middle of the child custody dispute when testifying against either or both of their parents. It looks more like opening an emotional Pandora’s Box, with the real risk of spilling out bad things that can never be put back inside. It will take time for the Courts to sort out just what the new rules will be regarding child custody and visitation in California, since this statutory change to California’s child law could be a real game changer. It is now unclear how far the Courts might stretch statutes like California Family Code §2335, which makes most specific acts of misconduct improper and inadmissible in a California divorce case. Will minor children be told they can say where they want to stay, but they cannot tell the Court about specific acts of misconduct, essentially denying the ability to say why they prefer one parent over another? If this statute is applied to limit the testimony of children, then how will it harmonize with the listing in Family Code §3011(b) & (d) of abuse and use of controlled substances? How will the fundamental right to privacy guaranteed by California’s Constitution be affected if children testify about their parent’s crimes? Did every parent in California have a reasonable expectation of privacy when within their own homes with their minor children before the January 1, 2011 effective date of the edits to Family Code §3042, but by Legislative fiat that expectation was wiped clean? Did Big Brother just get another powerful tool to monitor you and deprive you of privacy, by cracking open the door to having your children testify against you? If your minor child can address the Court when he/she wishes to, is Big Government finding some form of tortured logic that will allow it to compel minors aged 14 and over to testify just around the corner?
A good divorce attorney will inform you if the rules of the game are changing, like shifting sands, underneath your feet. If the changes, as is the case in this instance, trigger a series of big question marks rather than certainty, they will let you know that too. At the Law Offices of Thomas Chase Stutzman, A Professional Corporation, we strive to keep our clients fully informed regarding what the rules are. If you are looking for a divorce attorney in San Jose or the South San Francisco Bay Area, call our office for a free initial consultation. At the Law Offices of Thomas Chase Stutsman, A Professional Corporation, we strive to keep our clients fully informed regarding what the rules are. If you are looking for a divorce attorney and child custody and visitation rights in San Jose or the South San Francisco Bay Area, call our office for a free initial consultation.