How much does this child testimony weigh in court?
A: The child's maturity, and apparent determination to live with a particular parent must be considered by the court. Age, by itself, has no weight. The court must determine what the child is actually thinking, free of the influence of either parent. Family Code 3042(c) effectively requires that the court take a child's testimony, if the child is at least 14 years of age. But, the weight of that testimony remains within the court's discretion. So, in fact, despite the law, the court can ignore the child entirely, or allow the child's testimony to determine the outcome of a custody dispute.
She also wants to take the older boy to court to testify tomorrow against Dad to state he moved out on his own will... I guess. And mom wants to use this as basis for justifying the move of the second and younger child now to receive full physical custody.
A: Character evidence is admissible in a child custody
action. In any other legal action, you could object to the testimony as inadmissible character evidence. Here, however, the child's testimony that you have acted poorly as a parent in the past could be relevant to the court's determination. So, if the older child intends to "bash" you under oath, that could be bad. If I were representing you, I might be forced to engage in a very adversarial cross examination, with the idea of trying to show that the child doesn't have any actual facts for testifying against you -- therefore, the testimony must be the product of undue influence by the other parent.
You could simply ask, "Did your mother
tell you to say anything when you came to court today?" And, "Did your mother offer you anything if you said something about me?"
If the child says, "yes," then it almost doesn't matter what the mother told the child to say, because the fact that she told the child to say anything, is probably enough to discredit the child's testimony.
Seems like a weak argument but can I ask to keep the visitation AS IS due to no change in circumstance. (The kids preference is not a change in circumstance in my opinion) please help me understand what are the possible solutions.
A: Section 3042(c) permits a child of 14 or older to testify. This doesn't make a change in circumstances, by itself. But, if the child who is in your care testifies that he wants to move, then the court could find a change of circumstances based upon that testimony.One more thing.. can I keep the older boy out for the courtroom hearing based on 7777? It's damaging to the relationship to have him hear all this minutia. THANKS!
A: If you mean Evidence Code 777, then you cannot force the court to exclude the child -- however, I would be surprised if the court would permit the children to remain in the courtroom, except during their own testimony. So, yes, you can ask the court to have the children wait outside except when called as a witness. If I were representing you, I would ask for a sidebar ("permission to approach the bench"), so that the kids couldn't hear your request. Otherwise, the children may perceive you as engaging in some sort of bad acting by your requesting that the be excluded from the courtroom.
Hope this helps.