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socrateaser
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33500
Experience:  Retired (mostly)
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Socrateaser: In Family Law if you have a Child that is old

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Socrateaser: In Family Law if you have a Child that is old enough (16-17) to articulate his preferences relative to where he wants to live full time.
How much does this child testimony weigh in court?
There is JOINT Legal and Physical custody of both boys, but through time, Mom has influenced the older boy so he decided to move out 3-years ago and live with mom and now the younder boy is being influenced so much that he wants to go with his older brother and live with Mom.
Mom files an RFO to take both, and now the younder child on the basis that "he has decided to move out to Mom's" and that physical custody must be changed through the RFO to 100%. She will allow for dad to visit at Mom's premises/house anytime, but 100% physical custody is being requested.
There is no change in circumstance here that I can see other that Mom has done a very good job persuading the boys.
There are no questionable incidents with the parents both are good parents but this "preference" from the kids has upset the situation where Mom wants 100% physical and Joint Legal.
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.
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

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 minutea. THANKS!
Submitted: 1 year ago.
Category: Family Law
Expert:  socrateaser replied 1 year ago.
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.
Customer: replied 1 year ago.
Please clarify the term :"Character evidence"
Thanks
Expert:  socrateaser replied 1 year ago.
"Many things including such matters as parent's character, his disposition, his emotional stability, his neglect or indifference toward child, his trustworthiness, and his acts and conduct may have bearing on parent's fitness, and may be considered by trial judge in deciding question of child's custody." In re Wisdom (1956) 146 Cal.App.2d 635.

Evid. Code 1100. "Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character."

Evid. Code 1101. "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."

Evid. Code 1104. Except as provided in Sections 1102 and 1103, evidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his conduct on a specified occasion.

From the above, it appears that character evidence in a child custody action is admissible based upon case law precedent, but not based the actual Evidence Code. Until you asked the question, I hadn't reviewed the specific laws -- but it does seem that the entire Family Court Judicial System seems to be operating under a misunderstanding that the Evidence Code supports the use of character evidence for purposes other than impeachment (Section 1101(c)), as part of a custody action. In particular Section 1104 appears to completely exclude character as a means of proving that your skill as a parent is deficient, based upon any witness' opinion (including your child's) of your general demeanor.

So, you can object if the child is asked questions about your general conduct, as inadmissible under Evidence Code 1104. Of course, testimony of specific incidences of your conduct on prior occasions is admissible, because it is not character evidence.

Hope this helps.
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33500
Experience: Retired (mostly)
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