Family Code §217 is regarding live competent testimony and how to proceed. This year is a major change in the Family Code wherein the major difference is allowing minors to testify in court. As many may recall, we used to use minor’s counsel to interview the children and then state to the court what their preference is regarding custodial issues. Many complained this was hearsay, which it was, and that it did not reflect the minor’s position but instead minor’s counsel’s position or views.
Now the legislature has decided that it is hearsay and the court will be better served if the minor is allowed to testify. There are procedural rules regarding notice by way of a Witness List and a method for the court to deny allowing the minor to testify. With that said, all of the private meetings with judges, the seminars on the subject, and discussions with other family law attorneys has led our office to believe that children will be taking the stand this year.
So what does it mean? I think from the age of 12 years old and up children can be called to testify. But do we want to go to that extreme? The answer is simple, only if it is the only way to get the information to the court.
How many times have I seen a mother state that the child does not want to play baseball, does not want father to coach, does not want to spend time with father, the child is afraid of father, the child is not fed at father’s residence, the child has no rules at father’s residence, and other statements that cannot be determined without the child’s voice. What a difference the truth will make and that is the purpose of the new rule.
This is a new area of the law and you must have a plan. Feel free to contact my office to discuss how this new change may help your case. Finally, you must have a plan so you can show the court that you have exhausted all other methods to get the same information and the only competent evidence is the live testimony of the minor child.