When will my Kid be Heard in divorce case?
As a family law practitioner, for years I have had clients tell me that their child wishes to speak to the judge or write a letter to the judge. This was never allowed. Judges had a duty to remain neutral and to not take the chance of being influenced by having their heartstrings tugged at by the sweet faces of the children whose fates they were deciding. Things have now changed – to a point. Effective January 2, 2012, California Family Code Section 3042 now requires that “If a child is of sufficient age and capacity so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.”
So, of course, this new law has parents jumping for joy. However, this new law has lawyers banging their heads against the wall. What is a “sufficient age”? How does one know if a child possesses the “capacity to form an intelligent preference as to custody”? Are they kidding? Most adults can’t even form an intelligent preference as to custody without help and guidance. Going through this process is a highly emotionally charged time when logical thinking goes out the window. So here is how the bay area courts are dealing with the new law:
The children who do get interviewed are seldom met with by the judge. They meet with mediators in Family Court Services (the mediation service provided through the court), who provides a written report to the judge. If the children are under the age of 7, they will likely not be interviewed. Between ages 7 and 14, they will likely be interviewed but with scrutiny. If the children appear coached or lack the maturity or understanding or what they are expressing, it is unlikely that their preferences will carry much influence. The more mature and together they appear, the more weight and credibility they will be given. If they are over age 14, their preferences will definitely be taken into consideration. They will still not be permitted in the courtroom nor allowed to participate in the hearings.
Hiring the right lawyer can make all the difference in your custody battle. Make sure you and your child get heard. Here at the Law Office of Pardeep Grewal, we are standing by, ready, willing and able to do our best to ensure that what needs to happen for your family, does happen.