Tiny Tommy Testifying: an Approach to Minor Child Input

• Jurisdiction: California,United States
• Author: Lauri Kritt Martin, CFLS
• Publication year: 2021
• Citation: Vol. 43 No. 1

Tiny Tommy Testifying: An Approach to Minor Child Input

Lauri Kritt Martin, CFLS

Lauri Kritt Martin is a certified family law specialist with Farzad & Ochoa Family Law Attorneys, LLP in the firm's downtown Los Angeles office. Lauri Kritt Martin may be one of the last attorneys left who enjoys litigation, while always striving to reach a negotiated resolution for her clients.

It is Monday morning following the Thanksgiving weekend. You are sitting in your office (now located in the bedroom of your nineteen-year-old away at college) gathering your thoughts and preparing to dive into this week's work. Your phone rings—it is a client, Sara, who is upset about news her fifteen-year-old son told her this morning upon his return to her residence after spending Thanksgiving weekend with his father, Sara's former husband, and his new wife. Sara had originally sought your assistance to help her negotiate the extension of time to refinance the former family home ("residence") so Sara can afford to complete the buyout of the father's interest.

This morning, Sara's focus in not on finances, but, as she phrases it, the "safety" of her son, who suffers from asthma, a condition that can cause respiratory illnesses such as COVID-19 to become possibly life threatening. The son reported to Sara that his father took him to a friend's home for Thanksgiving dinner where there were fifteen people for dinner, all inside and with no windows opened for ventilation. Sara is concerned about the father's disregard of COVID-19 protocol and wonders what she should do to protect her son. From within the privacy of her bathroom, Sara whispers to you what her son told her, because her son told her he does not want Sara to call or talk to his father about Thanksgiving.

You listen to Sara's concerns and, as a good counselor of law, ask her what does she want to accomplish? Does she want to educate and encourage the father to be more careful and only bring the son into well ventilated spaces, or does she want to punish the father for willfully ignoring the son's heightened risk of infection and possible ensuing complications?

You suggest that one alternative is to write a letter to opposing counsel raising the mother's concerns and suggest that the parties begin meeting with a co-parenting counselor on a regular basis who will help the parties listen to each other and work together. You advise Sara your letter will ask that the parties jointly agree on the co-parenting counselor and each pay one-half of all fees and costs so that both parties are invested in the process.

You and Sara discuss that there is a hearing in two months on Sara's request to extend the time for her to refinance the residence, where Sara lives with the son of whom she has 75% custody. Sara is concerned that the father will "make good" on his threats to seek more custodial time with the son in response to Sara's request for an extension of time and to counter her need to maintain the residence which is walking distance to the son's high school.

Sara is conflicted about involving the parties' son and wonders how she might present information about the father's Thanksgiving without placing her son in the middle of their disputes. You and Sara go through the list of adults who the son said were present at Thanksgiving to determine if Sara should ask one of them as to what occurred and if they would sign a declaration that would be submitted to the court and the father. Obtaining the same information from a willing adult could shield the son from providing this information to the court. Sara decides there is no one else who was present who will agree to sign a declaration for her or come to court to testify about what occurred.

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You agree with Sara that the decision to present information from the son should not be undertaken lightly and without consideration of the possible repercussions (anger from his father or guilt, to name a few). You explain to Sara that there are rules and protocols for presenting evidence from a child ("testimony"), but the first question is if she should offer such testimony.

Sara agonizes over whether to involve the son due to her concern that when the son becomes sick his asthma often complicates and exacerbates his illnesses. Sara asks you to explain what might occur if she submits the son's declaration, or if alternatively she lists the son as a possible witness.

You advise that one way for the court to become informed about what occurred at Thanksgiving and the son's preference concerning custody is to provide a declaration from the son. The son, rather than Sara, can draft a declaration describing the non-COVID-19 compliant Thanksgiving dinner, and you can submit it with Sara's opposition to the father's request for more custodial time to demonstrate that it is not in the son's best interest to have more time with his father. You explain that the father will see the son's declaration-there is no way to avoid this-and in your experience it is not uncommon for the other parent to ask the child to sign another declaration minimizing or explaining what did or did not occur which the father would then submit to counter Sara's submission. If the father takes that route the court will have two differing declarations from the son. If the court is presented with two declarations purportedly from the son, it may well disregard both or seek an independent assessment of what occurred on Thanksgiving. You counsel Sara that it is vital that the information about Thanksgiving be presented in a child centered manner-the need to protect the child from infection-as opposed to a desire to limit father's time with the son.

You explain the following possible scenarios to Sara that could result in the son communicating directly to the court:

If, for example, the son wants to tell the court directly about the environment of the Thanksgiving dinner he attended with father and that the son does not want his father to obtain more custodial time, this disclosure and stated preference will be governed by California Family Code section 3042¹ which provides in subsection (a) that 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."

Section 3042 is applied and...