Child Testimony In California Family Law Cases

In 2005, Jeffrey Elkins was involved in a marriage dissolution proceeding where he represented himself. Because he failed to understand the procedural requirements of presenting his evidence, all but two of his 36 exhibits were excluded from the case.This led to the martial property being divided based on his spouse’s plan. The unfairness of this result caused him to appeal the decision to the California Supreme Court.

The Elkins Decision

The Supreme Court found that a litigant’s due process rights were being denied by the use of procedures that the family courts had created to increase the efficiency of the process. This was necessary because of the crush of cases (In 2005, each judicial officer in the family court division was expected to take 2,500 cases per year).

This expediency, however, was denying litigants their rights a fair hearing. The Supreme Court created the Elkins Family Law Task Force to develop solutions to these problems.

Child Testimony

One area addressed by the Task Force was the use of child testimony. In a family law case involving a child, the child’s rights and very future are fundamentally affected. The family courts are faced with the problem of obtaining their testimony, in an attempt to determine their desire, yet do so in a manner that avoids entangling them in the sometimes unpleasant litigation process.

The report notes, “In many instances, their participation or input is important to achieve proper resolution of the matter or to ensure that their feelings and desires have been appropriately heard and addressed.”

As with all things that touch upon children, the question of if, and how, they want to participate in court, is difficult to answer. The Task Force concluded, “Children’s participation in family law matters should be considered on a case-by-case basis. There should be no blanket rule or practice requiring or prohibiting children from participating in court processes or procedures.”

Family Law Section 3042

The legislature has rewritten section 3042 of the Family Law Code to require courts to allow the testimony of children 14-years-of-age and older who “wish” to address the court and whom the court finds it is in their best interest to do so.

The court is responsible for determining this, and the section indicates no child is required to “express his or her preference of to provide other input regarding custody or visitation.” Nor are children younger than 14 years of age prevented from testifying, but the court has to find that such testimony would be both useful and not harm the child.

The court can also be informed of the child’s wishes by other participants in the process. The Judicial Council has issued an additional guideline for courts to use to determine how this should occur.