Child Custody: Alternatives to Child Testimony

26 Aug

It is my opinion, as a family lawyer, to avoid having minor children testify in a courtroom.  Especially when their testimony is going to involve a decision regarding custody over the.  In reality, what child wants to sit on the witness stand, staring directly at the counsel table where their parents sit on opposite ends and argue over where that child should live.  No child!! Arguably no child ever should be placed in this position.  Parents should never want to put their children in this position.  Too often do I have a client or an opposing party who wants their child to testify but for the wrong reasons.  Too often the children are coached and the testimony is not reliable.

California Rule of Court 5.250 provides: “…children’s participation in family law matters must be considered on a case by case basis.  No statutory mandate, rule or practice requires children to participate in court or prohibits protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child’s input while ensuring all parties’ due process rights to challenge evidence relied upon by the court in making custody decisions.”

So where is that balance of protection: How far do we go as the advocate for parent to also protect the child? As family lawyer we are held to the standard of doing what is  best for our client but also what is best for the minor child’s interest.  Sometimes these roles conflict.

ALTERNATIVES TO CHILD TESTIMONY 

  1. Parenting Plan Assessment: In Los Angeles courts, the least intrusive means would be to hold a Parenting Plan Assessment, commonly referred to as a “PPA.”  These are generally one (1) or two (2) day hearings.  During one of these, the parents and the child(ren) are interviewed by a court appointed licensed marriage and family therapist.  The evaluator will review the court file, any documents brought by the parents and will attempt to contact any references provided the time limits.  The evaluator also speaks with both parents alone and with the child, as well as speaking to the child alone.  At the end of the evaluation, the evaluator will make a recommendation as to a parenting plan that is in the best interest of the child. If the parties agree to the recommendation then a stipulation is entered. If the parties do not agree then a hearing is held for further evidence.
  2. Minor’s Counsel: The next level is a PPA is not sufficient would be to appoint minor’s counsel.  Minor’s counsel is an attorney who’s sole purpose is to represent the minor child.
  3. 730 Evaluation: An evaluation that takes place under Evidence Code Section 730.  It is similar to a PPA but much more extensive.  It is an outside expert who will prepare the report and does much more investigation into the situation, as there is often more than just a day or two to conduct the evaluation.  A 730 evaluation becomes necessary when the best interest of the child is in questions.  These evaluations are often used where there are allegations of: (1) bConcerns about child abuse, (2) Substance abuse, (3) Mental health problems, (4) One parent wishes to move out of state and the other parent objects, (5) Questionable parenting practices  that could have a negative impact on a child, (6) The parents are unable to agree on the custodial arrangement, or (7) There is a question about the child’s upbringing.
  4. Chamber’s Interview: The last option would be to have the minor child interviewed in the Judge’s chambers. This would allow the Judge to speak with the child and obtain the information that the requesting party is seeking to prevent but avoid the traumatic experience of testifying before the parents.

In sum, if a child’s testimony in open court can be avoided, it should be.  There are plenty of alternatives.

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