Can A Nine Year Old Testify About his Desire to Live with His Father?

In Escobar v. Flores, the trial judge changed custody of a minor child based upon the minor child’s desire to live in the United States.

FACTUAL BACKGROUND LEADING TO THE CUSTODY DISPUTE 
Although the minor child was born in Nevada, both parents lived in California at the time of birth. In 2004, the mother took the minor child to Chile which was her native country. The father claimed that it was for a seven month vacation, and that after six months he was informed that the mother and minor child would reside in Chile. The mother stated that from the beginning, the father knew and agreed to have the minor child move to Chili with his mother. In 2005, the mother obtained custody of the minor child from a Chilean court. Later, the minor child visited his aunt in California and his father filed a petition to establish custody. The mother filed a petition in California under the Hague Convention to return the minor child to Chile. The father opposed the petition citing a rule which allowed the court to refuse the mother’s petition if the minor child is of sufficient age and maturity to state his request. Although Chile was the country of habitual residence for minor child pursuant to the Hague Convention, neither party objected to venue or jurisdiction in California and the court proceeded.

CUSTODY TRIAL PROCEEDINGS 
The court interviewed the minor child in chambers. The minor child stated that he enjoyed living in the United States and did not want to return to Chile to live with his mother. His mother objected to the testimony based upon the following arguments: (1) the minor child was only nine years old and there is a bright-line test that children under the age of nine are not of sufficient maturity to state their desires; (2) the father coached the minor child to state that he wanted to live in the US; and (3) that the minor child did not have the sufficient maturity to testify as to his desires. The trial judge awarded custody of the minor child to the father.

APPEAL OF THE CUSTODY COURT’S RULING 
The Third District Court of Appeal affirmed the award of custody to the father. The appellate court rejected the mother’s argument that a bright-line test should be used to determine the age when a child is of sufficient maturity to testify about his desires. The court reasoned that it is up to the trial court to question the child and determine whether the child is of sufficient age and maturity to render testimony. In this case, based upon the record, the trial court did not error in finding that the minor child was of sufficient age to testify. The appellate court also rejected mother’s argument that the minor child had been coached to testify about his desire to remain with his father.

If you need a divorce attorney in the Orange County area to address custody in the dissolution of a marriage or any other divorce matter such as legal separation, annulment, child support, spousal support and/or property division, contact our law office located in Laguna Hills at (949) 643-5662. Conveniently located off of the 5 and 405 freeway at Lake Forest.

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 643-5662
Visit us at
www.LawintheOC.com

Please note that the posting of this information does not constitute legal advice for a custody dispute in Orange County. Facts and circumstances of the dissolution proceedings may alter the required action and analysis in any given custody battle.
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