Your children are going to testify at your divorce (maybe)

Elkins

The Elkins Implementation Task Force is currently attempting to overhaul California’s family law court system to increase fairness and efficiency.  The Elkins Task Force was created after the decision in Elkins v. Superior Court (2007) 41 Cal.4th 1337 found that current family law procedures were inadequate.  The court stated, “family law litigants should not be subjected to second-class status or deprived of access to justice.”  Id. at 1368.  The main objection of Jeffrey Elkins was that a local rule of the court reduced testimony almost entirely to written declarations.  Parties in family law court were outraged when they discovered they would not be allowed to testify in their own divorce proceedings.  AB 1050 was an assembly bill that sought to increase the participation of children in divorce proceedings.  Some proponents said it would better aid the court in following children’s wishes.  Others fear (rightly so) that children may be increasingly manipulated during divorce as a result.  In addition, children's testimony may increase the trauma of the divorce process.  Although the statutory change in the family code does little, the change to the family court rules exacerbates the manipulation issue by making attorneys recommendation for testimony discretionary instead of mandated.  This will ensure that lawyers will only have children testify if they are certain in will benefit their client, instead of looking for the input of children whenever a child wishes to give it.

California AB 1050

One result of the Elkins Implementation Task Force was state Assembly Bill 1050.  AB 1050 did two things:

1) It changed California Family Code § 3042 (children’s testimony) and

2) It will change the rules of the court regarding § 3042.

California Family Code § 3042

So how did § 3042 get changed?  Here is part of the statute before and after AB 1050:

Before:

If a child is of sufficient age and capacity to reason 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.

After:

If 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.

So, besides adding a few unnecessary commas , the new statute requires that the family court hear children’s testimony regarding visitation and not just custody.  Big deal.  

Family Rule 5.250

AB 1050 also required that the judicial council adopt a new rule to implement the changes made in § 3042.  In essence, this rule is where all the action is.  The newly proposed rule is Rule 5.250: Children’s participation and testimony in family court proceedings.  You can read the new rule on page 69 of the proposed rules (Here).  

A family law attorney may but is not required to inform the court that a child wishes to address the court.  Minor’s counsel (in dependency court) must inform the court that a child wishes to address the court.  So, even though a judge will only allow such testimony if it is in the best interests of the child, an attorney will only inform the court that the child wishes to testify if it is in the best interest of their client.  

The End Result

It was expected that Elkins would transform family law in California.  Lawyers anticipated AB 1050 to cause a great increase in the amount of child testimony in family law cases.  The end product changes very little, for better or worse.