By Richard A. Marcus, Esq.


With the new year comes a potentially important change in California law which may affect child custody cases. I say may because the impact of the law is speculative at this point. What I am referring to is a change in Family Code §3042 which became effective on the first of the year.

Under prior law, if the child was of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court was to consider and give due weight to the wishes of the child in making an order granting or modifying custody. The court also had the authority to control the examination of the child as a witness so as to protect that child’s best interest. The statute permitted the court to preclude the calling of the child as a witness where the best interests of the child so dictated and permitted the court to provide alternative means of obtaining information regarding the child's preferences.

The major change in §3042 can be found in subsection (c) which now provides:
(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.

There are of course a number of opinions as to how, if at all, this will affect child custody cases. By and large, based upon informal conversations I have had with fellow Family Law practitioners and Judges, there is a consensus that the wishes of children 14 years and older will play a more substantial role in custody determinations.

Please note the wording of the statute, and most particularly the phrase“...wishes to address the court.” That is not the same thing as testifying. The statute does not require live testimony. And judges will likely have discretion to decide exactly how the child is to address the Court. So we will all patiently wait and see exactly how the revision to §3042 will affect child custody cases.

For all of your family law needs, please contact the Law Offices of Richard A. Marcus (661) 257-8877.