Getting a divorce is difficult, especially when there are children involved in the marriage. Both parents have contributed heavily to the well-being of their children and have a close emotional bond. When spouses decide to get a divorce and child custody becomes an issue, you better get help from an experienced California family law attorney.
A child's choice on the custody arrangement has become more progressive. In some cases, a child might prefer living with one parent after the divorce. In the past, a child's preference was not really considered by a family court until they were in their late teens.
However, now your child's choice on custody arrangement has changed. There are no laws that permit a child to choose their custody status, but most California family courts believe 14 years of age is old enough to allow them to express reasons why they prefer one parent over the other.
California law allows more children the opportunity to voice their opinion on which parent they will live with. It's important for a parent to know:
- how a family court will view child's preference in a custody arrangement,
- how a child chooses which parent to live with, and
- when a child is allowed to make a choice.
Clearly, a child custody arrangement after a divorce is a critical life-changing event. You must avoid making huge mistakes by retaining an experienced divorce lawyer to protect your rights and the best interest of your children.
To give readers a better understanding on whether children are allowed to have a say in a California child custody arrangement, we are providing a detailed review below.
Child Preference – California Family Code 3042
As stated above, it was not that long ago that a family court would only consider a child's preference when they were near 18 years old, but this is no longer the case.
Under California Family Code 3042, it states the following:
- “(a) If a child is of sufficient age and capacity to form an intelligent preference as to custody or visitation, the court shall consider the wishes of the child in making an order granting or modifying custody or visitation.”
The statute further states under subsection (b) that the court controls the examination of the child witness to protect their best interest.
14 years old or older
Further, under subsection (c), it states that if the child is at least 14 years old and wants to address the court over child custody or visitation, then the family court “shall” permit it, unless they determine it's not in their best interest.
In other words, if the child is old enough and has the ability to form reasonable thoughts about their preference on child custody and visitation, the court has to listen and consider their opinion.
California lawmakers believe that when a child reaches 14 years old, they have enough emotional maturity to form reasonable reasons for a parental preference.
If the child is under 14 years old, the family court might also allow them to address the court over custody preference if they believe it's in their best interest.
It should be noted that child custody decisions involve numerous different factors, and a child's preference is only one of them, which may not be used by the judge.
Does A Child's Preference Impact the Family Court's Decision?
You should not assume a child's preference, in spite of their age, will have an impact on the courts custody decision.
California family law courts are given discretion to hear what the child says about preference, but they are under no requirement to follow the child's wishes.
In some cases, the judge might determine their preference is not sincere and they are attempting to manipulate their parents.
Sole custody
There are situations when a child will tell the court their preference for sole custody and their desire to have no visitation with the other parent.
In this type of scenario, the family court still has broad discretion to order visitation with the other parent, and could:
- require court-ordered counseling,
- reunification process, and
- other steps restore the relationship between the child and the parent they don't want to visit.
When a child 14 or older wants to tell the court their preference on custody, the judge is required to at least listen to them, but what they say often carries little influence on the final decision.
Every parent knows that teenagers are frequently emotional and are making a transition into maturity. They will often become rebels and start becoming disobedient.
In other words, their child custody preference could be based on short-term wrong reasons, such as choosing a parent who lets them do whatever they want.
Some common improper reasons for a child preference includes picking a parent with very limited rules in order to avoid being supervised, and parental alienation by one parent.
Valid reasons for child preference
There are a wide range of different valid reasons for a child having a custody preference, such as:
- domestic violence by one parent,
- neglect by one parent,
- alcohol or drug addiction by a parent,
- mental illness by one parent,
- child has a strong bond with one parent,
- one parent lacks the ability to provide proper care.
If a child is able to show valid reasons for a preference, then the court could decide to grant their request, but will typically order visitation time with other parent regardless of the child's wishes.
How Can a Child Tell the Court Their Preference?
Some California family law judges will listen directly from the child in open court or in their chambers. Under the California Rules of Court, a judge has to take into consideration several options:
- location of child's testimony, such as open court, closed court, or judge's chamber;
- if parents or their lawyers should be present when child gives their testimony;
- how the child will be questioned, whether only by judge or their attorneys.
Obviously, a child might be reluctant to tell the family court their custody preference if their parents or their lawyers are present during questioning. Parents will not normally ask any questions.
A court reporter will always be present to make a record of the testimony that will be used in the judge's decision.
In some situations, the family law court may appoint a guardian ad litem (GAL), which is essentially the child's legal counsel that will represent them during the process.
California Rules of Court 5.250
California Rules of Court 5.250 allows the family court several options to hears a child ‘s preference in a custody case, including:
- participating in mediation – California Family Code 3180,
- child custody counselor – California Family Code 3183,
- appointing a child custody evaluator or investigator.
It should be noted there are always concerns over undue influence by one parent and parental alienation.
If the court believes it's necessary, they have the authority to appoint an independent child custody 730 evaluator to investigate the child's history and then come back to the court with a recommendation.
Both parents and their lawyers will receive a report from the court over the child's preference and the actual testimony is kept confidential in the custody case file.
Undue Influence in Child Custody Preference
Let's be honest – child custody decisions are normally life-changing events. Some parents will take drastic steps to ensure they are awarded primary child custody, including applying emotional abuse and heavy pressure.
Some will also attempt parental alienation, which is taking down a parent or making false allegations.
If your child unexpectedly tells the family court they want to live full-time with the other parent, then you should consider the potential reasons for this preference.
It might be possible your spouse placed undue influence over your child to directly manipulate their testimony in order to be awarded sole child custody.
Parental alienation means to manipulate a child to turn against the other parent. This is normally accomplished by:
- telling the child false information,
- persuading the child their other parent does not love them,
- open and constant criticism about the other parent,
- placing all the blame of the divorce on their spouse,
- not letting child visit other parent.
Parental alienation often causes emotional harm to a child and normally results in them telling the court of their preference for custody.
Family Law Lawyers for California Child Custody Cases
If you have a custody case, you need help from an experienced child custody lawyer in California who knows how to protect your parental rights during this process.
Clearly, reaching a mutual agreement with your spouse is normally a much better solution than getting a family law court involved to make the decision, but this is not always possible.
Divorce mediation might also be an option if you have remained on friendly terms with your spouse.
If you need more information on a child choosing a custody arrangement, call our firm to go over the details.
Furman & Zavatsky are Los Angeles divorce and family law attorneys located at at 15821 Ventura Blvd #690 Encino, CA 91436. Contact our firm for a free case evaluation at (818) 528-3471.