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(a) Authority and overview

This rule is intended to implement Family Code section 3042. No statutory mandate, rule, or practice requires children to participate in court or prohibits them from doing so.

(b) Children's participation

When a child wishes to participate in a court proceeding involving child custody and visitation (parenting time):

(1) The court should find a balance between protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child's input while ensuring all parties' due process rights to be aware of and to challenge evidence relied on by the court in making custody decisions.

(2) The court must:

(A) Consider a child's participation in family law matters on a case-by-case basis; and

(B) Not permit a child addressing the court about child custody or visitation (parenting time) to do so in the presence of the parties. The court must provide an alternative to having the child address the court in the presence of the parties to obtain input directly from the child.

(3) Notwithstanding the prohibition in (b)(2)(B), the court:

(A) May permit the child addressing the court about child custody or visitation (parenting time) to do so in the presence of the parties if the court determines that doing so is in the child's best interests and states its reasons for that finding on the record; and

(B) Must, in determining the best interests of the child under (b)(2)(A), consider whether addressing the court regarding child custody or visitation (parenting time) in the presence of the parties is likely to be detrimental to the child.

(c) Determining if the child wishes to address, or has changed their choice about addressing, the court

(1) The following persons must notify the persons in (c)(2) if they have information indicating that a child in a custody or visitation (parenting time) matter either wishes to address the court or has changed their choice about addressing the court:

(A) An attorney appointed to represent the child in the case;

(B) An evaluator;

(C) An investigator;

(D) A child custody recommending counselor who provides recommendations to the judicial officer under Family Code section 3183; and

(E) Other professionals serving on the case.

(2) The notice described in (c)(1) must be given, as soon as feasible, to the following:

(A) The parties or their attorneys;

(B) The attorney appointed to represent the child;

(C) Other professionals serving on the case; and then

(D) The judicial officer.

(3) The following persons may inform the court if they have information indicating that a child wishes to address the court:

(A) A party; and

(B) A party's attorney.

(4) In the absence of information indicating a child wishes to address the court, the judicial officer may inquire whether the child wishes to do so.

(d) Guidelines for determining whether addressing the court is in the child's best interest

(1) When a child indicates that he or she wishes to address the court, the judicial officer must consider whether involving the child in the proceedings is in the child's best interest.

(2) If the child indicating an interest in addressing the court is 14 years old or older, the judicial officer must hear from that child unless the court makes a finding that addressing the court is not in the child's best interest and states the reasons on the record.

(3) In determining whether addressing the court is in a child's best interest, the judicial officer should consider the following:

(A) Whether the child is of sufficient age and capacity to reason to form an intelligent preference as to custody or visitation (parenting time);

(B) Whether the child is of sufficient age and capacity to understand the nature of testimony;

(C) Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court;

(D) Whether the subject areas about which the child is anticipated to address the court are relevant to the court's decisionmaking process; and

(E) Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child's desire to do so.

(e) Guidelines for receiving testimony and other input

(1) If the court precludes the calling of a child as a witness, alternatives for the court to obtain information or other input from the child may include, but are not limited to:

(A) The child's participation in child custody mediation under Family Code section 3180;

(B) Appointment of a child custody evaluator or investigator under Family Code section 3110 or Evidence Code section 730;

(C) Admissible evidence provided by the parents, parties, or witnesses in the proceeding;

(D) Information provided by a child custody recommending counselor authorized to provide recommendations under Family Code section 3183(a); and

(E) Information provided from a child interview center or professional so as to avoid unnecessary multiple interviews.

(2) If the court precludes the calling of a child as a witness and specifies one of the other alternatives, the court must require that the information or evidence obtained by alternative means and provided by a professional or nonparty:

(A) Be in writing and fully document the child's views on the matters on which the child wished to express an opinion;

(B) Describe the child's input in sufficient detail to assist the court in its adjudication process;

(C) Be provided to the court and to the parties by an individual who will be available for testimony and cross-examination; and

(D) Be filed in the confidential portion of the family law file.

(3) On deciding to take the testimony of a child, the judicial officer should balance the necessity of taking the child's testimony in the courtroom with parents and attorneys present with the need to create an environment in which the child can be open and honest. In each case in which a child's testimony will be taken, courts should consider:

(A) Where the testimony will be taken, including the possibility of closing the courtroom to the public or hearing from the child on the record in chambers;

(B) Who should be present when the testimony is taken, such as: both parents and their attorneys, only attorneys in the case in which both parents are represented, the child's attorney and parents, or only a court reporter with the judicial officer;

(C) How the child will be questioned, such as whether only the judicial officer will pose questions that the parties have submitted, whether attorneys or parties will be permitted to cross-examine the child, or whether a child advocate or expert in child development will ask the questions in the presence of the judicial officer and parties or a court reporter; and

(D) Whether a court reporter is available in all instances, but especially when testimony may be taken outside the presence of the parties and their attorneys and, if not, whether it will be possible to provide a listening device so that testimony taken in chambers may be heard simultaneously by the parents and their attorneys in the courtroom or to otherwise make a record of the testimony.

(4) In taking testimony from a child, the court must take special care to protect the child from harassment or embarrassment and to restrict the unnecessary repetition of questions. The court must also take special care to ensure that questions are stated in a form that is appropriate to the witness's age or cognitive level. If the child is not represented by an attorney, the court must inform the child in an age-appropriate manner about the limitations on confidentiality and that the information provided to the court will be on the record and provided to the parties in the case. In the process of listening to and inviting the child's input, the court must allow but not require the child to state a preference regarding custody or visitation and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.

(5) In any case in which a child will be called to testify, the court may consider the appointment of minor's counsel for that child. The court may consider whether such appointment will cause unnecessary delay or otherwise interfere with the child's ability to participate in the process. In addition to adhering to the requirements for minor's counsel under Family Code section 3151 and rules 5.240, 5.241, and 5.242, and subdivision (c) of this rule, minor's counsel must:

(A) Provide information to the child in an age-appropriate manner about the limitations on confidentiality and indicate to the child the possibility that information provided to the court will be on the record and provided to the parties in the case;

(B) Allow but not require the child to state a preference regarding custody or visitation (parenting time) and, in an age-appropriate manner, provide information about the process by which the court will make a decision;

(C) Provide procedures relevant to the child's participation and, if appropriate, provide an orientation to the courtroom where the child will be testifying; and

(6) No testimony of a child may be received without such testimony being heard on the record or in the presence of the parties. This requirement may not be waived by stipulation.

(f) Additional responsibilities of court-connected or appointed professionals

In addition to the duties in (c), a child custody evaluator, a child custody recommending counselor, or an investigator assigned to meet with a child in a family court proceeding must:

(1) Provide information to the child in an age-appropriate manner about the limitations on confidentiality and the possibility that information provided to the professional may be shared with the court on the record and provided to the parties in the case;

(2) Allow but not require the child to state a preference regarding custody and visitation (parenting time), and, in an age-appropriate manner, provide information about the process by which the court will make a decision; and

(3) Provide to the parents of the child participating in the court process information about local court procedures relevant to the child's participation and information about how to best support the child in an age-appropriate manner during the court process.

(g) Methods of providing information to parents and supporting children

Courts should provide information to parties and parents and support for children when children want to participate or testify or are otherwise involved in family law proceedings. Such methods may include but are not limited to:

(1) Having court-connected professionals meet jointly or separately with the parents or parties to discuss alternatives to having a child provide direct testimony;

(2) Providing an orientation for a child about the court process and the role of the judicial officer in making decisions, how the courtroom or chambers will be set up, and what participating or testifying will entail;

(3) Providing information to parents or parties before and after a child participates or testifies so that they can consider the possible effect on their child of participating or not participating in a given case;

(4) Including information in child custody mediation orientation presentations and publications about a child's participation in family law proceedings;

(5) Providing a children's waiting room; and

(6) Providing an interpreter for the child, if needed.

(h) Education and training

Education and training content for court staff and judicial officers should include information on children's participation in family court processes, methods other than direct testimony for receiving input from children, and procedures for taking children's testimony.