Major changes in California's divorce law are expected in 2012 pursuant to changes to California Family Law Code 3042. The changes are a result of the Elkins Family Law Task Force's final report and recommendations from April 2010. The new legislation will affect how, when and if minor children can testify in divorce and custody cases, and what will be expected of them, the parents, family law attorneys, and the court itself.
According to Lowenstein, a Certified Family Law Specialist, partner at Lowenstein Brown, and former Chairperson of the Family Law Section of the San Diego County Bar Association, "The biggest change to take effect in 2012 is that the court shall consider the wishes of the minor child regarding custody and visitation, if the child's age and capacity to reason are 'sufficient' and furthermore, a child who is 14 or older may address the court directly." Lowenstein notes that the court will control the examination of the child and/or the direct testimony, to protect the minor's best interests, but such a grave responsibility may be against the child's interest, on its face.
Brown, a partner at Lowenstein Brown, former President of the Public Interest Law Foundation, and former Peace Corps volunteer and youth advocate, adds "The other major impact is that multiple people can alert the court of the child's 'desire' to express a custody or visitation preference or to testify directly, including a minor's counsel, an evaluator, investigator or mediator, the judge, a parent's attorney, or the parent." Brown uses the term 'desire' loosely - while a minor may indeed have a valid preference, she is concerned about potential manipulation of the minor to invent a preference, particularly when the financial and emotional stakes are so high.
Brown points out that clients might still prefer to resolve the case in a conference room through ADR (Alternative Dispute Resolution), and keep his/her personal matters out of a public court. When asked what kind of case lends itself to needing a child's opinion or testimony, or even legislation at all, Lowenstein suggests that it's not necessarily what kind of case, but rather, what kind of attitude the parties hope to maintain long-term. "The story of the parents' divorce will become the child's story as the child becomes an adult," she says, "and parents' actions during the divorce shape the story."
