Can my child testify in our family law case?

In 2007, a family law case made its way to the California Supreme Court.  That any case would make it is rare, that a family law case would be taken up is even more rare.  The case, Elkins v. Superior Court (2007), had a profound impact on the way family law matters are heard today and who may testify.

The case, which was filed in Contra Costa County, involved a situation which prevailed there at the time.  Due to limited court time, all family law trials were by declaration (writing) only and you were required to anticipate evidentiary issues and address them in your documents, or your evidence would be thrown out.  This happened to the father, who lost his case on a procedural technicality and fought to the highest court in the state.

The Supreme Court ruled that even family law matters have the right to a trial with live witnesses and to refuse to grant that was a denial of due process.  The Court ordered the state to come up with laws that protected the family law case's due process rights.  The Elkins case resulted in many new forms and new laws.  One of the most significant ones was that, under Family Code Section 3042, children ages 14 and over will be given the right to testify unless the court specifically determines that it is not in there best interests to do so.  

Under 3042, any party to the case or any other individual associated with the case may advise the court of the child's desire to testify and the court will allow it.  Whereas previously, children were almost never allowed to testify, now, their wishes can be heard and a strong voice for the best interests of the child will not be silenced.  As with all potential witnesses, care should be given before putting them on the stand, however in high conflict cases where children have suffered abuse, allowing them to be an active participant in the process can help promote healing while also allowing for a proper resolution of the custody case.

Parental Rights

I received the following legal question posted to me recently:

"Question: If a person is incarcerated, does their spouse have the right to get a divorce and take away parenting rights?
Question Detail: My husband's ex wife did this to him and my husband and I want to know if she was legally able to do so."



Often, people come to me asking about terminating parental rights or what their rights are.  They frequently confuse parental rights with custody.  If the above person was incarcerated, his rights likely were not terminated, but rather the mother was granted sole legal and physical custody of the child.

Legal custody is decision making authority, while physical custody refers to where the child lives.  As long as the child is a minor, then these are subject to modification.  The termination of parental rights, on the other hand, is used as a first step towards adoption by another person or persons. 

The other common thing asked is if someone can give up their parental rights to terminate their support obligation.  The general answer is no.  Again, parental rights should only be terminated prior to someone adopting the child, as the State of California believes that the child should have the benefit and financial support of two parents. 

To put it another way, a child is not a car.  You cannot give it up simply because the cost of maintenance as exceeded your expectations.