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Kids testifying in custody cases?

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At least one Utah district court says it has the constitutional right to call children to testify in divorce custody cases, but a state lawmaker wants the Legislature to make sure that only happens under extenuating circumstances.

Sen. Terry Spencer, R-Layton, says SB106, reviewed Tuesday but held for further discussion by the Senate Judiciary Committee, would also require judges to give "substantial weight" to what children over age 12 want when the court determines custody and sets up parent visitation schedules.

The law now reads that judges only take into consideration what children desire.

Opponents say the bill would reinforce the false and widespread public notion that 12 years is the age at which children can legally decide for themselves which parent they want to live with.

"There is no magic legal age for the child to decide," said Stewart Ralphs, an attorney and spokesman for the Legal Aid Society. "Giving children substantial weight would be folly because oftentimes children don't have any idea what is best for them."

Some children would prefer to live where they might have the most fun, but ultimately that might not be the household that will help them most to grow into responsible citizens, Ralphs said. "If one household lets them get away with everything and the other makes them be responsible, which parent do you think the child would want to live with?"

Sen. Lyle Hillyard, R-Logan and an attorney, said he likes the idea of having children not testify in open court, "but I'm really nervous about setting the line at age 12," he said. "I think children that age are too young, and they will be absolute pawns of the parents."

The situation also arises of the child being placed under horrendous pressure and often results in a lot of guilt because by choosing one the child believes he or she has unchosen the other, Hillyard said.

There are also cases where a kid "creates pandemonium" with one parent in order to get to live with the other, and sometimes the noncustodial parent will be a party to that. "And I don't know how many cases I get in which custody has become an issue because the noncustodial parent is promising a child to ask for a custody changed as a way to stop paying child support."

Spencer said the bill is an effort to give courts guidance, not limit them.

The bill could be reviewed by the Senate Judiciary Committee as early as Thursday.

E-mail: jthalman@desnews.com