When do Children have a Voice in Family Court?
Many people get caught up on the belief that children in the family court system have a say in what happens to them at some magical age which varies from state to state. Many states set the bar at the age of 14-years-old but there are some states that will not entertain a minor child’s thoughts or opinions at any age.
While laws vary from state to state, we are choosing to use California as an example due to two recent high-profile cases in this state. In the Laing case out of Santa Cruz County and the Homme case in Los Angeles, many are questioning why these teenage children were not given a voice in the court’s decision to order them into highly controversial reunification camps. While the law may permit children to express an opinion at the age of 14, the judge is not required to incorporate the child’s wishes or opinions into their judgment.
In California, according to Family Code FAM § 3042;
(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as 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.
and:
(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.
California Family Code § 3042 states that if a judge precludes a child from testifying about their custodial preference, they must provide an alternative option for the child’s opinion to be heard. It is common practice for judges to appoint family court professionals such as child custody evaluators or minor’s counsel but reports of unprofessional conduct from these professionals is widespread. In the family court system, there is little if any, recourse available for minor children or parents who do not agree with recommendations or rulings even when the decisions are dangerous and place children at risk.
Many parents are anxiously waiting for their children to reach this magical age where they can express their desires. Like with everything in family court, it’s the wild wild west. It’s truly up to the discretion of the judge — there are judges who will talk to children as young as 6-years-old and other judges who refuse to hear from 17-year-olds. Just because the law allows a child to express their opinion doesn’t mean the judge is required to give their preference any weight when making a ruling.
Sadly, our present day family court system places more emphasis on pro-contact and parental rights than it does on children’s rights and child safety. As a result, it is estimated that tens of thousands of children are sent into abusive situation each year. Couple this with the fact that judges are not trained in important topics like child abuse, trauma, or how victims and perpetrators may present in court.
More shocking, there is minimal if any, requirement for training in domestic violence for judicial officers across the country. A 2019 survey from The University of Cincinnati (Nathanial R. Jones Center for Race, Gender, and Social Justice) shows that mandates for judicial training on domestic violence varies state by state. In the states that do have requirements for judicial training on domestic violence, the requirements are minimal.
Domestic violence is a social justice crisis in the United States and it has a multi-faceted impact on our society. While there are many resources available when someone makes the brave decision to leave an abusive relationship, those resources and services stop at the steps of the family court house. Domestic violence is about power and control and the abuser’s need for power and control does not dissipate when the relationship ends, research shows it often intensifies. The family court system becomes the new platform of abuse. Many survivors describe post separation abuse as being more painful than the abuse they suffered during the relationship because in family court, the children are used as pawns and weapons.
“If the average person understood what happened inside our family courts, they would not stand for it. It's shocking," states Danielle Pollack, Policy Manager at the National Family Violence Law Center at the George Washington University.
The family court system is arguably the most important branch of our judicial system, tasked with making decisions about the most vulnerable members of our society. The 1950’s quote that “children should be seen and not heard,” is that the heart of our present day family court system.
“How do we expect our children to grow up and speak up against violence when we are telling them they have to endure it if it comes from a biological source?” -Natalie Rose
We need a family court system that is trauma-informed and understands the latest research on domestic violence, coercive control and post separation abuse. Our Family court professionals need to stop infantilizing children and give them a voice when it comes to decisions that impact their lives. We need to treat children as if they were human beings versus case numbers and business transactions.
###
* Please note: this blog is an opinion piece and is not intended to be legal advice. Please consult with your attorney to understand the laws in your state.
