Can a Child be Interviewed in a Motion to Modify Custody?
Full Question:
Answer:
A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification. Certain aspects of the decree are modifiable, while others are not. The property division is not typically modifiable by the court. It is final. Child support or custody may be modified if there is a significant change of circumstances. It will be a matter of subjective determination for the court, based on all the circumstances involved. The overall deciding factor for the court is the best interests of the child.
In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child.
Please see the following CA statute:
3042. (a) 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.
(b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
a child witness so as to protect the best interests of the child.
(c) If the child is 14 years of age or older and wishes to address
the court regarding custody or visitation, the child shall be
permitted to do so, unless the court determines that doing so is not
in the child's best interests. In that case, the court shall state
its reasons for that finding on the record.
(d) Nothing in this section shall be interpreted to prevent a
child who is less than 14 years of age from addressing the court
regarding custody or visitation, if the court determines that is
appropriate pursuant to the child's best interests.
(e) If the court precludes the calling of any child as a witness,
the court shall provide alternative means of obtaining input from the
child and other information regarding the child's preferences.
(f) To assist the court in determining whether the child wishes to
express his or her preference or to provide other input regarding
custody or visitation to the court, a minor's counsel, an evaluator,
an investigator, or a mediator who provides recommendations to the
judge pursuant to Section 3183 shall indicate to the judge that the
child wishes to address the court, or the judge may make that inquiry
in the absence of that request. A party or a party's attorney may
also indicate to the judge that the child wishes to address the court
or judge.
(g) Nothing in this section shall be construed to require the
child to express to the court his or her preference or to provide
other input regarding custody or visitation.
(h) The Judicial Council shall, no later than January 1, 2012,
promulgate a rule of court establishing procedures for the
examination of a child witness, and include guidelines on methods
other than direct testimony for obtaining information or other input
from the child regarding custody or visitation.
(i) The changes made to subdivisions (a) to (g), inclusive, by the
act adding this subdivision shall become operative on January 1,
2012.
See also:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=03001-04000&file=3040-3049
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=03001-04000&file=3110-3118
