Before January 1, 2012, children in a pending divorce or paternity case could testify but the circumstances were rare and limited by the Judge. That all changed on January 1, 2012, when a new law went into effect. Family Code 3042 now allows children, more than ever, to state their preference during a custody case.
The law states that when 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.
The law distinguishes between children who are 14 years or older and those under the age of 14. While children 14 or older shall be permitted to testify unless the Court states on the record why it is not in the child’s best interest to testify, children under 14 will be allowed to testify if the Court determines it is in the testifying child’s best interest. In other words, the older children are presumed to have the right to testify while the younger children are not.
We have written an in-depth article about how a child’s preference in California custody cases is determined. Enjoy.