Can Children Speak Up in a Custody Battle?

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When a custody battle ensues in a California divorce case, a child can act as a rope in a game of tug-of-war.  Children often silently endure a custody battle over which parent will be his or her primary caregiver. This can add stress to an already difficult situation for a child whose parents are splitting.

But, children don’t have to keep silent about their thoughts on whether to live with mom or dad. Guidelines for a child’s ability to express their wishes in a custody battle were introduced in California in 2012.

Any child who is between the ages of 14 and 17 can address the court about where he or she wants to live.  The Judge on the case must allow the child to do so, or present a valid and specific reason why testifying in their own custody case is against the young man or young woman’s best interest.

Children younger than 14 are also able to testify before the court but, in this case, the Judge must find a specific reason why this would be in the child’s best interest. The younger the child, the more the case depends on which home would be healthiest for the child.

Once it is decided that a child will testify in order to express their wishes, it does not necessarily mean that the child will physically get up on the witness stand, take an oath, and testify in court. There are several steps taken to ensure that the experience is not dramatic or traumatic for the child.

A helpful legal guide from Avvo details the most common settings where children share their thoughts in a custody battle. First, the child can speak with a Family Court Services Mediator or Child Custody Recommending Counselor.

This mediator or counselor will act as a professional liaison between the child and the Judge and / or the child’s parents.

There is also the option of appointing the child a lawyer.  This attorney can represent the child in court after speaking with them to deduce his or her wishes and concerns. The representative will make requests on the child’s behalf.

A third option is allowing the child to speak directly with the judge assigned to the case.  The judge can consult with the child in the judge’s chambers instead of having the child testify in public.

No matter which option the child or parents decide is most beneficial, the court will take the child’s wishes into consideration when making a custody decision.  The key word here is “consider.”  If the child is a minor, they don’t have the ability to make the final decision on which parent to live with.

The best decision in any custody battle depends on the unique circumstances of the case and the specific needs of the child.  If you have questions or concerns regarding a custody battle within your family, and the best interest of your child, a divorce attorney will likely have the resources necessary to assist you.

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About Julie Clark

Julie M. Clark graduated from the University of the Pacific’s McGeorge School of Law. She has been practicing law in Riverside County since February of 1992. Julie Clark's Google+ Profile

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