My response:
He could motion the court for modification, but it would be a real uphill climb, especially since he agreed to the stipulation over 10 years ago. Something absolutely major would need to have occurred before a judge would modify the existing orders. In other words, his chances for modification are slim and none.
California requires the court to give "due weight" to the wishes of the child in granting custody, if the child is of sufficient age and capacity to form an intelligent preference. Maturity is not measured by chronological age. [In re Marriage of Rosson (1986, 1st Dist) 178 Cal App 3d 1094, 224 Cal Rptr 250] The decision as to whether the child can express an intelligent preference, and how much weight to give that preference, is necessarily left to the discretion of the trial judge, based on his or her knowledge of the case and observations of the child. [Stuart v Stuart (1962, 4th Dist) 209 Cal App 2d 478, 25 Cal Rptr 893] In Re Marriage of Mehlmauer (1976, 4th Dist) 60 Cal App 3d 104, 131 Cal Rptr 325, the court approved the trial judge’s rejection of a 14-year-old’s custody preference in a modification proceeding, where it was based on little more than the opportunity to spend more time with his father, wear his hair longer, and perhaps come home or go to bed at a later time. In In re Marriage of Rosson (1986, 1st Dist) 178 Cal App 3d 1094, 224 Cal Rptr 250, on the other hand, it was held that the trial judge properly considered the preferences of 10 and 13-year old children who were "very mature."
To the extent the judge decides that a child’s preference is entitled to consideration, that preference is entitled to more weight in modification proceedings than in an initial custody determination, because the child has lived with the arrangement and has a more informed basis for choosing than at the time of the initial award, when there is usually considerable uncertainty as to how a future arrangement will work out. [In re Marriage of Rosson (1986, 1st Dist) 178 Cal App 3d 1094, 224 Cal Rptr 250]
As stated above, in awarding custody the court may, but need not, give weight to the child’s preference. When the court will consider the child’s preference, or when the child’s testimony as to other matters, such as the child’s feelings and behavior in the presence of each parent, is relevant, there are several methods of presenting this evidence. Local rules or practices may govern the choice of method.
If the child is old enough, and his or her testimony will not concern a custodial preference or similarly sensitive matter, there may be no problem with having the child testify in open court in the same manner as any other witness. With younger children, however, and when the child’s testimony is likely to touch on sensitive subjects, the usual procedure is to have the child testify under relatively informal conditions in chambers. It is proper for the court to have the child testify in chambers in the absence of the parties, but in the presence of the parties’ counsel and a court reporter. [In re Marriage of Okum (1987, 2nd Dist) 195 Cal App 3d 176, 240 Cal Rptr 458; on the problem of honoring a stipulation for the nondisclosure of the child’s recorded testimony in chambers when the matter is reviewed on appeal, see In re Marriage of Rosson (1986, 1st Dist) 178 Cal App 3d 1094, 224 Cal Rptr 250 (court suggested only way to avoid appellate court’s disclosure of confidential testimony in the discharge of its duty to provide written opinion with reasons stated is to stipulate to trial judge interviewing the child alone, which could render the judge’s decision effectively unappealable)] With the parties’ consent, or in the absence of an objection, the court may interview the child in chambers outside the presence of the parties and counsel. [In re Marriage of S. (1985, 2nd Dist) 171 Cal App 3d 738, 217 Cal Rptr 561] The practice of a judge in a custody proceeding talking to the child in private without a reporter present, over the objection of either party, has been disapproved. [Jenkins v Jenkins (1954) 125 Cal App 2d 109, 269 P2d 908 (holding, however, that any error was cured by the judge’s statement that the decision was based only on the basis of evidence introduced in court)]
The use of children as witnesses on any issue, whether related to custody or not, is generally discouraged by the courts. Children should not be brought into their parents’ litigation process. The break-up of the marriage is usually very upsetting for a child, and being required to speak with attorneys or testify as a witness will only draw the child into the litigation process. The result could range from causing the child to feel responsible for the outcome of the action, and thus for the welfare of a parent, to actually being empowered by contributing to the outcome. The child should be permitted to remain a child, without responsibility for the adults.
There are special statutory protections for a child witness under the age of 14. The court must take special care to protect such a witness from undue harassment or embarassment, and to restrict unnecessary repetition of questions. The court must also insure that questions are stated in a form appropriate to the witness’ age, and on objection may forbid the asking of a question that is not reasonably likely to be understood by a person of the witness’ age. [Ev C §765(b)]
In addition to the requirements of Ev C §765, the court must control the examination of the child witness so as to protect the child’s best interests. The court may preclude the calling of the child as a witness where the child’s best interests so dictate and may provide alternative means of obtaining information regarding the child’s preferences. [Fam C §3042(b)]
The Standards of Judicial Administration encourage the courts to attempt to provide a children’s waiting room in the courthouse for the use of children under 16 who are present either to participate in proceedings or to accompany participants. The room should be supervised and open during normal court hours.
IAAL
