It is possible under current Family Code section 3042.  It may or may not be a wise choice for the sake of your kids, however, since it sounds as if you expect one or more of them to say things to the judge that might be make them feel as if they've betrayed their dad, chosen you over them, or that they are being placed into the middle of your dispute.  

AB 1050 passed both houses of the California legislature in August, 2010.  It becomes law on January 1, 2011 as revised Family Code section 3042.  However, it is not implemented until 1/1/2012.  Existing law required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.   

• New Family Code section 3042 will require courts to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the court determines that doing so is not in the child's best interests, and in that case the court must explain that finding on the record. 

•  When judges and family court commissioners are instructed to state their findings on the record, it can sometimes be easier for them not to error on the side of permitting the testimony - which is why such provisions are added to statutes by their supporters.  At the same time, requiring judges to state their reasoning does cause thinking judges to better evaluate the issues before them.

•   

New Family Code section 3042 requires the court to provide an alternative means of obtaining information regarding the child's preferences if it does not allow a child 14 or older to testify as a witness. 

Either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question.  Either parent's attorney may also make that representation to the Court, which then triggers the issue.  

According to its author, Assemblywoman Fiona Ma, current law was not sufficient because children over a certain age who had the capacity to express important preferences were routinely not allowed to testify under former section 3042.  Hence, she believed that children's wishes were ignored except through the voices of third party evaluators or minor's counsel, and even then that they were not given proper weight.  
  


There is a longstanding judicial antipathy towards the unseemingless of testimony from children, questions about the reliability of such testim 

The statute does not preclude younger children from testifying and so the law is essentially unchanged as to them - in their cases the court is not required to make findings on the record if it does not permit testimony. 

The Bill's author also stated that nothing in the statute will require a child to express his or her preference.  Instead she claims that section 3042 is strictly intended to provide a better avenue for participation in the proceedings and not to pressure children to express their wishes against their will.  

The examination of child witnesses, and to suggest alternate and less intrusive methods for obtaining the information about preferences beyond directly questioning them in court. 

Hence, at least as to your children's custody preferences, depending upon their ages, after January 1, 2012, you will likely be able to have the judge listen to them, particularly since there will be a period of confusion, especially in smaller jurisdictions, about how to manage child testimony for months to come.  

This new law gives custodial parents, which I fear if misused...   It becomes an opportunity to increase conflictual and alienating behaviors rather than a simple and useful means of allowing children a voice in the proceedings. 


The End...  




"I had a really good childhood up until I was nine, then a classic case of divorce really affected me."

~Kurt Cobain  

Cobain's life changed at the age of seven when his parents divorced in 1975, an event which he later cited as having a profound impact on his life. His mother noted that his personality changed dramatically, with Cobain becoming more withdrawn. In a 1993 interview, Cobain said, "I remember feeling ashamed, for some reason. I was ashamed of my parents. I couldn't face some of my friends at school anymore, because I desperately wanted to have the classic, you know, typical family. Mother,father. I wanted that security, so I resented my parents for quite a few years because of that." After a year spent living with his mother following the divorce, Cobain moved to Montesano, Washington to live with his father, but after a few years his youthful rebellion became too overwhelming and he found himself being shuffled between friends and family. 

and we all know what happened to Kurt...