California Bill Allowing Child Witnesses – Some Thoughts

CA bill to require courts to allow  10 year old children to testify on custody

I have looked at SB 170, Section 3042 and Rule 5.250; on the face of it, the child is protected, but I understand that in California the reality is somewhat different.

There are serious concerns about the involvement of children in the court process. But in my judicial experience (over 17 years I saw hundreds of children in my chambers but NEVER in open court, and never subjected them to cross examination) I can say that in the vast majority of cases the child and the court were helped by the experience.

In Israel, family cases are heard only by a specialist court and by specialist judges, who are selected on the basis of their experience in Family Law, and commitment to sit in Family Court for several years.

Against this background the voice of the child is heard in Israeli courts in a sensitive fashion. It is exceptionally rare for a child interview to be used for fact-finding; apart from getting to know the child, and obtaining his views by open questioning and discussion, an important part of the meeting with the judge is showing the child that a real human being is handling the case, and telling the child that while his views are important, the judge, and not the child, has to decide the case. Many children are relieved to know this, and are more inclined to open up.

In particular, Family Court judges know, from in-service training and exposure to other material  and discussions with the social services support unit staff, about the various influences on the child, and how to balance the child’s views against the other material in the case.

Judges are alert to the possibility that a child has been drilled or brainwashed as to what to say. It is usually clear that a child has been prepped; and the fact that one of the parents has prepped the child usually counts against that parent in the final analysis, and may lead to specific orders as to how that parent should behave).

For anyone who wants it, I have prepared a translation of the part of the Civil Procedure Rules dealing with the meetings between the child and the court social services support unit and the judge. Contact me via this website.

February 2017