Nobody gets married with the belief it will end in divorce, but statistics confirm it's often a reality. A divorce is typically very stressful for everyone, especially when there are children are involved. Normally, both parents contribute to the child's welfare while they are growing up, but one parent is often the primary caregiver, while the other is the primary source of income.
Clearly, both roles are important to raising a happy family, but in a divorce where child custody will need to be determined, at what point does the court take the requests of the child in mind? Who gets child custody while divorce is pending? If you plan to contest legal custody of your child in California, it is important to take into consideration the wishes of your child.
California courts will give due consideration to a child's preference and choice in custody when certain conditions are met. Knowing in advance which parent your child wishes to live with will be useful in framing the issue when brought before the court. In what situations will the court consider the child's preference in determining custody?
There is no specific age where the Los Angeles County family law court will consider what the child wants involving custody issues. However, California Family Code Section 3042 requires the court to give consideration and due weight to their preference on custody if they are of sufficient age and have the capacity to form an intelligent opinion on the issue.
Again, it's important to note this Code Section doesn't give a specific age and doesn't contain a standard percentage of due weight for the judge to place on their wishes. In recent years, child custody laws in California have changed and given more weight for children to have a voice to express their custody preference.
If you are planning a divorce and have children, it's important to get legal representation from the experienced Los Angeles divorce and family law attorneys Furman & Zavatsky LLP. Don't attempt to go through the divorce process alone. Having skilled legal counsel is critical to your future. Now that we have covered a basic overview of a child's preference in custody issues, let's examine related Family Code Sections below.
California has numerous laws to protect children in a divorce and the primary goal of any judge in a Los Angeles County family law court is to make decisions that are in the child's best interest. The court will typically allow a child to receive financial support from both parents and provide joint custody unless it's not an option.
It is the responsibility of both parents and the court to determine what is in the best interest of children that will provide a stable environment after the divorce. In most cases, children love their parents and want to make them happy.
Unfortunately, this is difficult when children are placed in the middle of an ugly divorce. It's not uncommon for divorcing parents to have major disagreements while determining custody, visitation, and child support. The divorce is already ugly enough and confusing for children, but forcing them to choose one parent over another is very stressful. California family laws are designed to help courts make the proper child custody decisions without further harming the child.
Court Consideration of Child's Preference and Choice of Custody
Under the California Family Code 3042, and it's court implementation of the 2018 California Rules of Court Rule 5.250, a court will consider a child's preference and choice in custody if:
- The child is of sufficient age. Again, there is no hard and fast rule for this, but the child's age must be of sufficient level where the child will make an intelligent choice for custody.
- The child is of sufficient capacity. Capacity is the cognitive level of an individual that permits him or her to understand and reason. The capacity of the child must be at a level where the child can make an intelligent choice for custody.
- Testimony must be in the child's best interests. Even if it is determined that the child is of sufficient age and capacity to make an intelligent choice for custody, the court must believe it is in the child's best interest to provide testimony. The court will consider whether there is any positive value to the child's situation in rendering testimony related to custody. If the court determines there will be no value to the child's testimony, then the court will prevent the child from testifying. Furthermore, if the court determines there will be a negative impact on the child if the child were permitted to testify, the court will likewise prevent testimony from the child.
Testimony of Children Fourteen Years of Age or Older
The California Family Code 3042 requires the court to hear the testimony of a child fourteen years of age or older if the child so chooses to provide testimony. However, the court can bar the child from providing testimony if the court determines it is not in the child's best interests to do so.
In some circumstances, testimony can have a detrimental impact on a child's well-being. Thus the court will prevent the child from testifying if it believes the child's mental or emotional well-being will be compromised. However, if a child is fourteen years of age or older, the court must come to such a conclusion with a proper explanation, on the record, since the default rule is that children fourteen years of age or older shall be permitted to testify.
What Happens if my Child is not Permitted to Testify?
If the court determines that your child cannot testify, there are other means by which your child's preference can be made known to the court. The California Family Code 3042(e) provides that if the court does not permit calling the child as a witness, the court shall provide other means of obtaining a child's input on custody. Those methods can include:
- The child's participation in mediation;
- A child custody evaluator documenting the child's preference;
- Evidence provided by the parents or other parties; and
- Evidence provided by a child interviewer.
To be presentable to the court, these methods should be documented in writing and detailed enough to be useful to the court in determining custody. All parties should be provided a copy of the evidence in writing and any professionals involved should be available for cross-examination. The document will also be required to be filed in the family law file. If those conditions are met, these methods can be utilized to inform the court of the child's preference and choice in custody in lieu of testimony.
Call a Los Angeles Child Custody Lawyer to Discuss Your Case
If you are concerned about your child's custody and your child has made it known that they wish for you to have custody, then it is crucial to make sure that your child's preference is presented to the court. The court will consider your child's testimony if presented either orally or through the alternative methods available, but it is imperative that it is submitted correctly.
If you are seeking custody of your child, call the Los Angeles child custody attorneys of Furman & Zavatsky LLP today at 818-528-3471 or contact us online. Your child has a voice, and if your child wants you to have custody, the court should be presented with that information.
Furman & Zavatsky – Los Angeles Divorce and Family Law Attorneys
15821 Ventura Blvd #690
Encino, CA 91436