Rites of Passage
Time was when a child went through a teenaged rite of passage with the elders of his or her clan. Such a rite of passage might have included learning a Hebrew poem, an important dance, or going off into the woods on a solo adventure.
In more modern times, the rite of passage has increasingly been one in which kids come to the courthouse to talk to judges about their living situations. Most judges don’t blatantly ask the children with whom they might like to live, but they will ask them a variety of other questions about who does the majority of the parenting and with whom they feel the closest feelings of warmth and love.
The CA Family Code, section 3042 requires that the Court hear from a 14 year old regarding their preferences and may allow a child under 14 to state a preference, either in Court or to another person the Court appoints.
Here is the text of CA Fam. Code Section 3042 with my comments in bold:
3042. (a) 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.
If a child is mature enough to address the court, the Court shall consider and give weight to the child’s wishes.
(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.
The Court can control how a child witness is examined (i.e., usually in chambers with a court reporter but no lawyers or parties present).
(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.
Any child over 14 has the right to address the Court.
(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.
A child under 14 may address the Court if the Court finds that the child’s best interests would be served by allowing this (the Court may but doesn’t have to allow a child under 14 to address the Court).
(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.
If a child is not permitted to testify, then the Court shall (must) provide an alternate method to gain information.
(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.
There are a number of different ways to get this input.
I write about this as a rite of passage for many children around the age of 14. Many judges will meet with 11 or 12 year olds – indeed in an adoption proceeding, 12 year olds are required to speak with the court about their preferences.
What this means is that I have visions of skinny 12 year olds slouching outside the courtroom in the hallway staring down at the floor trying to control their emotions. Too often one parent or both parents have talked to the child about their preferences and even coached them into stating that they want to live with one parent or the other. We hope our judges are able to discern what is coaching from what is genuine feeling (and most of our judges are quite good at this – or I should say, all of our judges seem to be generally good at this).
I am on the record with clients and the Courts as saying that I do not believe children should come to court, that these are adult issues to be worked out by adults. But there are simply times when the facts as seen by the parties are so at odds that the only thing to do is bring the children in. I always feel it’s a sad day when the children come to court and, to quote my 5 year old daughter “it hurts my heart” to see it occur. The kids suffer so much anxiety in the lead in to stating their preferences, that it’s something they will likely never forget (on a personal note, I talked to the judge at 14 in my own parents’ divorce and I will never ever forget the experience – we were well-coached by a family friend to walk into chambers and state emphatically that we loved both parents and wanted week over week visitation, which we got).
There is another side to having teens come to court, a positive side. This is an opportunity for their voices to be heard, the only time most of them have their voices heard and considered by someone “official” in the divorce proceedings. This is what I mean by rite of passage. There is something powerful about letting children come to the courtroom and describe their experiences, wishes, hopes and fears to the judge in the case. In some sense, it is the most “authentic” action that happens in an entire divorce case, because even the children who have been the best coached, end up telling the whole story to a judge who is paying attention and knows how to ask the right questions. This can be empowering for the teenager whose voice is often so lost in the process of the divorce that they become hidden in the all of the action. The parents become so intent on “winning” or “sticking it to” the other side, that they too forget (not out of malice or neglect, just out of sheer overwhelm) that the children have deep feelings about what is going on – those feelings may include more than anger or sadness – I remember feeling embarrassed, hurt, and guilty among other emotions. Mostly, I just wanted things to get normal again.
So, while I am a strong advocate for keeping children out of the courtroom at almost any cost, I do think that this particular rite of passage can have a positive effect on the self-esteem of the children being asked to share their feelings with the Court. It can give them a feeling that their voice is truly being heard by someone important at a time when their voices are often lost in the process.
I do not meet with children at my office as a general rule, largely because although I might hope they will say one thing or another to the Court, I do not want to put any such pressure on them. Heck, the pressure on the adults can be very severe, so severe that many adults have a difficult time bearing it, but for the kids it can not only be extreme but they may carry it with them the rest of their lives. The last thing most of them need is a lawyer in a suit coaching them on what to say.
If I do see a child, I tell them the same thing every time: “the judge will be very kind to you. These are adult problems but you are old enough to have a voice. Your voice will get louder and louder as you get older. This is your opportunity to share with the judge the feelings you have about the situation – that no one else may know. Be honest with the judge because your voice matters.”
I try to encourage my clients to say the same thing to their children. By framing it this way, adults can help children can view what might otherwise be an unpleasant experience as an empowering moment in their lives. Despite the acrimony between the parties in a divorce case, the children have an opportunity to grow each step of the way.