Whether or not a child should give their opinion as to their own child custody or visitation schedule depends on many factors. However, there is no law requiring a child to testify in a custody hearing, and therefore, it is not as common as you would think. The courts are very careful when considering whether a child should testify and specific laws have been enacted that permit children, based on their age, to testify and speak directly to the Judge. Therefore, when appropriate, a child’s voice can be heard and taken into consideration by the Judge when making a custody determination. Here are some common questions and answers regarding children in the courtroom.
- Letter or Declaration to the Judge
Can my child write a letter or a Declaration to the Judge? The answer is usually, no. If your child writes a letter or a Declaration to the Judge, the Judge will not read it nor will it be accepted by the court. The courts do not want children involved in adult matters and even make it an order in every custody case for parents not to expose their children to the legal process. There are other legally correct ways for a child’s voice to be heard rather than submitting a spontaneous writing to the Judge.
- Taking my Child to Court
Can I bring my child to court for my custody hearing? This is an absolute “no” unless you have already received permission to do so. Anyone under the age of 16 that tries to enter the courtroom without prior permission will be asked to leave. And, it is very unlikely that the Judge will consider your request for your child to speak at the hearing on the same day.
- Family Court Services Interview
So, I have discussed what not to do when it comes to children speaking on their own behalf in court. However, here is one way that the law allows for a child’s voice to be heard. Having your child interviewed by the Family Court Services mediator is very common and probably the least intrusive way of acquiring your child’s perspective when it comes to child custody and visitation. In every custody case in San Diego County, the Court orders the parties to attend Family Court Services, which is similar to mediation, where the parents work together toward a mutually acceptable parenting agreement that is in the best interest of their children.
Unfortunately, a majority of the time the parents do not reach an agreement, but they can request for the mediator to interview their children. Depending on the child’s age, parent’s agreement, and the mediator’s professional opinion, the mediator can schedule a separate meeting to interview the child. Usually, if the child is under the age of 8, the mediator will not interview the child, regardless if the parents agree. If the mediator believes the children should be interviewed, then the mediator will ask both parents and they each must agree. If the parents do not agree or if the mediator does not agree to interview your child, then you can request the Judge to order your child to be interviewed. Additionally, if the Judge wants to hear from the children, they also can order the mediator to interview the children regardless if the parents agree.
Similar to the Family Court Service appointment, the interview with the child is completely confidential and no one can be in the room other than the mediator and the child. The mediator will ask the child questions regarding their relationship with their parents, but never directly ask the child who they would rather live with. Before the custody hearing, the mediator will prepare a confidential Family Court Services Report summarizing the mediation with the parents, the child’s interview, and the mediator’s recommendations. Only the Judge, the parents, and the parent’s attorneys will receive copies of the report.
- Speak with the Judge Directly
What if your child was interviewed by the Family Court Services mediator and the mediator’s recommendations are against the child’s wishes? Can my child speak to the Judge directly? Yes, you can request for the Judge to speak with the child directly. California law states that if your child is 14 years or older and wishes to address the court regarding custody and visitation, the child must be permitted to do so unless the Judge does not believe it is in the child’s best interests. If the child is under the age of 14 and wishes to address the court, then the Judge may deny the request if they do not believe it is appropriate.
With these requests, it is completely up to the Judge to decide whether they would speak with the child and the method of doing so. Each Judge has their own way of speaking with children directly. In one of my cases, the Judge asked the parents to bring the children to his department on a specific date and time, and the Judge spoke to the children individually behind closed doors; neither the parents nor the attorneys were allowed to be present. On the hearing date, the Judge shared with the parents and the attorneys a summary of what the children said. In another case, the Judge set a specific time for the child to appear. On that day, the Judge closed the department to the public and only allowed the parents and the attorneys to be present. The Judge got off the bench and sat in the jury box next to the child and asked the child questions regarding the relationship with each parent. The Judge did not allow the attorneys, nor the parties to ask the child any questions.
- Minor’s Counsel
What if the Judge denies my request for my child to address the Court, can my child’s voice be represented in another way? Yes. Your child can have his or her own attorney to represent their best interests by appointment of minor’s counsel. Minor’s counsel can either be requested by one or both of the parents or ordered by the Judge. If the Judge grants the request, then an attorney to represent the child or children will be appointed to the case. Minors’ counsel are usually private attorneys who only represent the minor child, and not either of the parents’ interests. Minors’ counsel become the child’s voice in court and are usually appointed in complex cases, such as child abuse, child neglect, drug related cases, high conflict divorces or other cases the Court deems appropriate.
Before deciding whether your child should speak to the Judge, regardless of the method, first think about whether it is in your child’s best interests and speak with your attorney to see if it is the right move for your case.
By: Anna Encinias, Esq., Attorney at Contreras Law Firm