While the new law does not give a child free rein to testify or address the court, it does provide far greater opportunity for mature children to have their preferences heard and taken seriously when it comes to matters of custody
San Francisco, CA (Vocus/PRWEB) June 15, 2011
Until recently, the law regarding a child’s ability to address the court in his or her parents’ custody case has been restrictive, and rarely resulted in a child being granted the opportunity to testify. The courts have typically recognized a child’s choice regarding living with Mom or Dad by obtaining the information through reports, or from third parties, such as the court-appointed mediator’s office.
The California legislature recently approved amendments to this process under Senate Bill AB 1050. San Francisco family law practice Health-Newton says under the new law, which amends California Family Code §3042 and goes into effect January 1, 2012, the rules about children speaking up to the court have been significantly changed to give children a greater voice in their custody preferences.
“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,” states Amendment (a) of AB 1050.
Pursuant to the new law regarding children addressing the court in custody matters, new procedures will be put into place that require a court to allow a child to address the court directly regarding his or her preferences, if a child is age 14 or older and so wishes, unless the court determines that doing so is not in the child’s best interests (and in that case, the court must state its reasons on the record). If, under the new law, the court precludes a child from testifying in the matter, the court must then provide alternative means of obtaining input from the child and other information regarding the child’s preferences (California Family Code §3042(e)).
The new law also clarifies that the court can take into account a child’s preferences for both orders of child custody and visitation. Additionally, the modifications to the law permit any of several individuals to assist a court in determining whether a child wishes to address the court, including a child’s own appointed counsel, an investigator, a mediator, custody evaluator, either parent, or either parent’s attorney. The judge may also inquire about whether the child wishes to address the court.
The new law does not prevent a court from allowing a child under age 14 to address the court if the court deems it appropriate, but there is no requirement that the court allow a child to do so.
“While the new law does not give a child free rein to testify or address the court, it does provide far greater opportunity for mature children to have their preferences heard and taken seriously when it comes to matters of custody,” says Alison Grcevich, an attorney with Health-Newton, LLP.
For more information about the amendments to California Family Code §3042 or any other family law matter, please contact Heath-Newton, LLP by calling (415) 992-5038, visit their website http://www.heathnewton.com, or stop by their office located at 240 Stockton Street, Suite 300 in San Francisco, California.
About Heath-Newton, LLP
Heath-Newton, LLP is a San Francisco family law practice focused on families. These San Francisco divorce attorneys pride themselves on working with clients from all backgrounds and lifestyles. Heath-Newton, LLP specializes in premarital agreements (prenups), same-sex marriages and domestic partnerships, divorce, child support, spousal support, adoption, and child custody in San Francisco and the Bay Area.