Will my children be heard in the custody case?

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It is one of the most common questions asked in custody cases: “Will my children be heard?” In other words, will they get to tell the judge their custody preferences? Will they get to discuss domestic violence or other things they may have witnessed? Unfortunately, as with most legal issues, the answer is, “It depends.”

California law presumes that children can be harmed when inserted into the middle of custody or domestic violence issues. Since protecting children is of primary concern throughout California family law, judges prefer not to directly involve children in adult business matters. In fact, one sure way to find yourself in trouble with the judge in charge of your case is to discuss custody, or other court business, with your children–no matter their age. Don’t do it. Period.

However, the law recognizes that children’s wishes and the information they provide about how each parent takes care of them can be important factors when making custody decisions. Thus, there are several mechanisms designed to let the children be heard without exposing them to actually testifying in court (which should be considered only as a last resort).

Normally the first opportunity children will have to make their voices heard in a custody matter is in mediation. Although the exact details of how mediation is handled vary from county to county in California, mediation is required before a judge will make custody orders. In almost all counties, children from as young as five years old are mandated attend the mediation.  The mediator will discuss with the children what schedule might work best and ask if there is anything the children are worried about concerning custody.

If the parties cannot agree on a custody schedule at mediation, but the children still need to be heard, the court might decide that the children should have their own lawyer.  Lawyers who represent the children are called Minor’s Counsel.   They have special training beyond just family law experience and are appointed to assist the judge in figuring out the best interests of the children. Minor’s Counsel is paid for by one party, both parties, or by the county depending on the parties financial circumstances.  Minor’s Counsel job has two requirements: 1) make the children’s wishes known to the court and 2) provide a case just like any other lawyer establishing what is best for their clients (the children).

If Minor’s Counsel is not appointed (and whether they will be varies greatly between counties and even between judges in the same county) another way for the children “to be heard” is to ask the judge to interview the children one-on-one.  California law states that children 14 years old and over should be heard in most cases. Children younger than fourteen can also be heard from, but either you or your lawyer (if you have one) will need to convince the judge that the child wants to be heard and is of sufficient maturity to do so. From 14 years old on the children are presumed to be mature enough.

Custody evaluators can also act as conduits of information from the children to the court. Evaluators normally speak with the parents, children, teachers, doctors, friends, and others to determine what custody solution they believe is in the children’s best interest. Of course, such an evaluation almost always involves speaking to the children. There are several downsides to asking the court to order a complete custody evaluation: they are expensive (up to tens of thousands of dollars); they are often unavailable; they are not always competent; and they often take many months to complete an evaluation.

One essential thing to remember: If your children are in therapy do NOT count on a therapist to testify and tell the judge what the children have revealed in sessions. Most therapists want nothing to do with testifying in court and believe it can damage the therapeutic relationship they need to help your child. Also, even if a therapist is willing to testify, it will not happen in most cases unless both parents agree to it. Communications between the child and the therapist are confidential and cannot be divulged in court unless both parents (in most cases) agree that having testimony from the therapist is more important than protecting that private relationship.

“Will my children be heard in the custody case?”

Considering the possible downsides of children being heard in a custody case (psychologically, economically, etc.) perhaps  a better question is, “Do I really want my children being involved in the custody case?”

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Article by Helen Zajic
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