Bay Area Family Law Blog
Australian Courts to Consider Changes to Child Custody Hearings
A custody dispute in Australia has caught the attention of an international audience, both because of the dramatic facts and the potential precedent-setting nature of the case.
The dispute is between an Australian mother and an Italian father over the custody of the couple’s four Italian-born daughters. In defiance of an Italian court’s order that the parents share joint legal custody of the parties’ children, the mother took the four girls to Australia, alleging abuse by the father . After a case was brought before the Australian Family Court, the Court, citing the Hague Convention, ordered the girls to be returned to Italy. On appeal, the decision was upheld . Adding additional drama to the already heated case, the four girls went into hiding in an attempt to avoid being subjected the order in late May but were found shortly thereafter.
In a last ditch effort to keep the girls in Australia, the great aunt of the four children has brought a constitutional challenge to the High Court seeking to overturn a section of the Family Law Act that prevents children from receiving independent legal representation in custody disputes except under “exceptional circumstances.” The High Court is expected to rule on the issue in August and, pending the Court’s ruling, the children have been allowed to stay in Australia.
While the issue of whether or not to consider a child’s testimony on his desired custodial arrangement is being decided in Australia, this right is well established in California courts. Family Code Section 3402 requires that judge consider the interests of a child who is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.” This Section also provides that a child may testify regarding his or her preference, or if testifying is not in the child’s best interest, the court will consider alternative means of obtaining the child’s input regarding custody which may involve receiving recommendations from minor’s counsel, an evaluator, an investigator, or a mediator.
Whether or not it is advisable to have a child testify in court is another issue. Indeed, the process of testifying may take too much of an emotional toll on the child, and may cause a dramatic rift in an already fractured family.
In short, determining custody is not easy. While it is important to consider the child’s desire, how best to do so is a difficult question. It is highly advisable to speak with an attorney when making this decision. The lawyers at Heath Newton are very experienced with the thorny issues presented in child custody disputes and can provide invaluable insight as a parent goes through this emotionally taxing time.
For more on the Australian case, read here: http://www.theaustralian.com.au/business/legal-affairs/high-court-hope-for-girls-caught-in-international-custody-battle/story-e6frg97x-1226367435689