Do California Courts Let Children Testify During Custody Hearings?

Recently, news broke that Angelina Jolie and Brad Pitt's custody battle had reached a tentative conclusion. It was announced that a judge had issued a temporary ruling that granted Pitt joint custody of the minor children he shares with Jolie. In response to this ruling, Jolie filed an appeal with California's Second District Court of Appeal.

In her filing (as reported by the Associated Press), Jolie alleges that Judge Ouderkirk excluded evidence relevant and critical to the children's health, safety, and welfare, and that he refused to let her teenage children testify during the case.

As a result of this recent news, many people have had questions about whether minor children can testify as witnesses during custody cases. While minor children are legally allowed to participate in family law matters, there are situations in which the courts preclude them from doing so. Keep reading to learn more about when and how children can testify in custody, visitation, and other family law matters.

Can a Minor Testify During Custody Proceedings?

According to California's Family Code Section 3042, "if a child is of sufficient age and capacity to reason so as to form an intelligent preference s 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." This statute further notes that if the child in question is 14 years or older and wishes to address the court regarding their custody and visitation preference, the courts should allow it unless it is determined that doing so is not in the child's best interests. This statute also dictates that if the court decides that it is not in the child's best interest to testify, they must "provide alternate means of obtaining input from the child."

It is important to note that this code neither requires nor prohibits minor children from stating their custody or visitation preferences to the court.

Rule 5.250: Children's Participation & Testimony in Family Court Proceedings

Under the 2021 California Rules of Court, Rule 5.250, whether a minor child should be allowed to participate or testify in a family law matter (such as custody and visitation cases) should be considered on a case-by-case basis. As with other family law matters involving minor children, the court's top priority is ensuring that the child's best interests are protected. This rule emphasizes that the courts need to "find a balance between protecting the child" and the other concerns of the case.

According to Rule 5.250, the courts will consider the following when determining whether it is in the child's best interest to testify:

  • The child's age
  • The child's desire to testify
  • The child's capacity to form an intelligent preference
  • The child's ability to understand the nature of their testimony
  • Whether the topic of the child's expected testimony is relevant to the case and the court's decision-making on the case
  • Other factors that may weigh in favor or against having the child testify

The courts will also consider any information that indicates that testifying (or not testifying) puts the child at any risk emotionally. Conversely, it will also be considered whether testifying benefits the child emotionally.

What to Do When Your Children Want to Testify

If you are going through a difficult custody battle, and your minor children want to testify, you should first consult with an experienced attorney, like ours at Hanson, Gorian, Bradford & Hanich. A skilled lawyer can use their experience to help you understand how the process of child participation in custody cases works and can help you and your family determine if this is in your family's best interest.

When a child wishes to testify, the courts must be notified. Several different people can do this, including:

  • The minor's counsel/attorney
  • An evaluator
  • An investigator
  • A child custody recommending counselor
  • A party involved in the case
  • A party's attorney

Even if no one notifies the court that a minor child wishes to testify, the judge may take it upon themselves to inquire whether the child wishes to participate. This is most likely to happen in cases where the affected children are 14 or older.

What Happens If the Courts Preclude My Child from Testifying?

If the courts determine that it is not in the child's best interest to testify as a witness in a custody or visitation case, they must provide alternative means for the child to provide their input. Potential alternatives to testifying can include the child's participation in custody mediation, the appointment of a child custody evaluator, or information may be provided by a child custody recommending counselor or by a child interview center or professional. In some cases, parents, parties, or witnesses involved in the proceedings may also provide admissible evidence regarding the child's input.

If your child wished to testify and was denied, or if you believe that the courts mishandled your child's input or testimony, you should speak with your attorney right away. If legal mistakes are made, including abuse of discretion on the part of a judge, you may have the option to appeal the ruling. Contact our law firm to discuss your case.


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