It is unusual for a Family Court judge to have to intervene and decide a child custody arrangement during a California divorce. Most divorcing couples can negotiate a custody settlement, often as part of the uncontested divorce process.
However, deep disputes over custody do happen sometimes. When they do, the judge may order a hearing for each side to present their case why the court should choose their preferred custody arrangement. This hearing can resemble a trial, with attorneys presenting evidence and the parties having the chance to testify.
How judges decide
In some cases, the children might also testify. This is allowed under California law, though it can be a sensitive issue. It can be traumatic for the kids to be in a courtroom and be asked which parent they would rather live with. But in some cases, knowing the children’s preferences can be helpful to the judge.
The law provides no cut-and-dried rule about when a child may testify in a child custody case. Judges are told to balance the statutory duty to consider the child’s wishes and the probative value of their testimony against the need to protect the child’s emotions. Factors include:
- The child’s age. If they are at least 14 and express a desire to testify, the judge must allow them to testify unless doing so would be against the child’s best interests.
- The child’s capacity to form an intelligent opinion about the matter and understand the proceedings.
- Whether the child may be harmed emotionally if they testify or are not allowed to testify
- Whether the subject matter of their testimony would be relevant
As we said above, it is unlikely that your children will end up testifying in court about their child custody preferences. Most parents want what is best for their children. They are able to work with their ex (and their respective lawyers) to find a solution that is practical, sustainable, and provides the kids with a nurturing environment in which to grow up.