The Role of a Child’s Preference in CA Custody Cases

Child custody is decided on what is in the child’s best interest but not necessarily on the child’s preference. However, this does not mean that a child does not have a say in where he or she is to live and with whom.

How Old Does a Child Need to Be to Choose Which Parent to Live With?

It is a common misconception that when a child reaches a certain age he or she can decide which parent to live with after a divorce or separation.  When parents cannot come to a child custody agreement, judges decide child custody – not kids. The fact is that until a child reaches the age of majority, 18 years old, the only individuals who can determine custody are the child’s parents, and if the parents can’t decide, a judge will.

When Will the Court Consider a Child’s Preference?

California courts must consider and give weight to a child’s preference when the child is “of sufficient age and ability to voice an intelligent opinion” on custody or visitation pursuant to Family Code 3042. If a child is at least 14 years old, the law allows the child to state a custodial preference, unless the judge believes doing so would be detrimental.

Those children may address the court unless the court finds that their participation is not in their best interest. Children under 14 years of age may address the family court if the judge finds that their participation is in their best interest.

In California, the family law judge decides whether the child will testify in court on a case-by-case basis. The court is more likely to allow a child to testify in court if the child is older or particularly mature. However, the judge will never force a child to testify in a child custody hearing if the child doesn’t wish to do so. They only need to express their preference if they want to.

When a child testifies in court, the judge can limit the questions that the family law attorneys ask to protect the child from harassment or embarrassment.

If the child doesn’t testify in court about custodial preference, the judge can use other methods to get the child’s input. For example, the judge can appoint an evaluator, investigator, or child custody mediator to speak with the child and then testify in court about the child’s preference. Also, the court may ask a guardian ad litem (attorney representing the child) to testify about the child’s opinion on custody. (Fam. Code § 3042 (f).)

Alternatively, the court may choose to have the child testify in chambers, outside of the presence of the parents; judges often do this with younger children, or when the child is likely to testify about sensitive topics.

When a child testifies in a judge’s chambers, the court reporter and attorneys must still be present unless the parents agree that the judge can speak with the child alone. Parents cannot attend because it can be intimidating and emotional for the child.

If the court precludes a child from testifying a custodial preference, the judge must provide another way for the child to express an opinion, such as through a custody evaluator. (Fam. Code § 3042.)

How Much Weight Does the CA Family Court Place on a Child’s Preference in Custody Determinations?

Each case is different, and the judge will decide how much weight to give to the child’s preference using broad discretion. Courts will generally give more value to older children’s opinions than those of younger children.

There are many reasons why judges don’t automatically accept a child’s preference for custody. For example:

• the child might be torn and decide that living with the parent who needs the child is important, even if that parent isn’t prepared to care for the child full-time;
• the child may want to live with the parent who has more money, a nicer vehicle, or a bigger home;
• the child may want to live with the “Disneyland” parent because that parent provides gifts, vacations, or large allowances during parenting time, or;
• the child may want to live with one parent over the other because one parent alienated the child from the other.

The judge will always consider the child’s reasons for preferring one parent over the other when deciding how much weight to give the preference.