How is a Child's Preference and Choice in Custody Determined?

Does a child get to decide with what parent he or she lives?

How is a Child’s Preference and Choice in Custody Determined?

How does a child's preference to live with a parent affect a child custody case?

A child’s preference in custody includes the following:

  1. With whom the child chooses to live,
  2. How the child can state that choice, and
  3. When (at what age) the child can make the choice.

A child's choice in California child custody cases has evolved

There was a time when a child’s choice was a non-factor until the child reached his or her late teenage years.

However, child custody laws in California became more progressive. The legislature passed Family Code 3042 and its companion in California Rules of Court 5.250. Children then gained a voice to express their custody preference today unlike ever before.

In this article, we will discuss a child’s preference in custody, how a child chooses with which parent to live and when the child can make such a choice.

How is a Child's Preference and Choice in Custody Determined?

A child’s preference in custody and Family Code 3042

California Family Code 3042, subsections (a) through (d) specifically state:

"(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.

(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state
its reasons for that finding on the record.

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests."

A child’s preference in custody for children age 14 and older

The court must listen to a child who is 14 years or older unless the court determines that it is not in the child’s best interest to do so. When a child is under the age of 14, the court must first determine whether or not it is in the child’s best interest to listen to him or her.

There is no magical significance to the age of 14. The California legislature believes the child has enough emotional maturity and capacity to reason and articulate relevant and appropriate reasons for a preference.

For those of you that have teenage children, this may surprise you. This is also the age children go through some emotional turmoil as they find their place in the world. It is not unusual for a child at this page to engage in rebellion. They may even use the “preference” option as a means to escape discipline. Before you fret too much, keep reading.

A child’s preference in custody does not rule the day in family court

Do not assume a child’s preference, regardless of the age, will carry the day in court. Family law judges have the discretion to listen to a child’s preference but not necessarily follow every aspect of it.

The court is not required to follow the child’s preference if the court believes the choice is not sincere and a means to play one parent against the other.

Even in the context of a sincere choice and good reasons for a change, the court may not cut off all visitation even if the child requests it.

What if a child comes to court and states a preference to be in the sole custody of one parent and not see the other? The family court has wide discretion to still order visitation with the other parent. The family court can require court ordered counseling, reunification and other remedial measures to restore the relationship between the child and the parent the child no longer wishes to visit.

How does a child voice his or her choice?

Some family law judges choose a direct approach and hear from a child directly in chambers or in open court. In such situations, the Family Code and the California Rules of Court give the court the following options to consider:

  • The location of the testimony, including the option of closing the courtroom to the public or hearing the testimony in chambers.
  • Whether the parents, attorneys or neither of them should be present when the court takes the child’s testimony.
    • Regardless, it is almost assured a court reporter will be present and take down the testimony so there is a record of it.
    • The court can allow for a listening device for the benefit of the parents and the lawyers if neither are present when the child testifies.
  • The manner in which the child will be questioned. This includes whether it will just be the judge or whether the lawyers or the parents will question the child. The parents will likely not question the child if represented by a lawyer.

The family law judge does not have to do it this way 

Both Family Code 3042 and California Rules of Court 5.250 give the court many options to hear the child’s preference in custody. These include:

  • Participation in mediation under Family Code section 3180.
  • Appointment of a child custody evaluator or investigator.
    • The child’s preference may not be as straightforward as it may seem. There may be issues regarding undue influence, parental alienation, or other emotional or psychological abuse.
    • The court may believe an investigation necessary due to the history of care and control of the child. The court has the power to appoint an independent child custody 730 evaluator to investigate these issues and make recommendations to the court.
  • Admissible evidence and testimony of the parents or witnesses.
  • Through a child custody recommending counselor pursuant to Family Code section 3183(a).
  • Through a child interview center or professional.

The Court may also appoint minor’s counsel, which is a lawyer for the child or children.

The report back to the court regarding the child's choice and preference

Regardless of the method the court chooses in the place of speaking with the child directly, the report back to the court must be:

  1. In writing and fully document the child’s views on the matter.
  2. Describe the child’s input in sufficient detail so the Court can make an informed decision.
  3. Be provided to the parents and their lawyers.
  4. Be filed in the confidential portion of the family law file.

How to put the issue of a child's preference and choice in front of the court

The most common way to do it is for the parent who seeks custody to file a formal request for order with the court. The parent states in his or her moving papers that the child has expressed a preference to live with that parent or has stated a preference to spend more time with that parent.

The parent, through a delicate balancing of stating the child’s preference in custody but not pressuring the child, must state to the family court the most important facts. These include the living arrangements between the parents and why it would be in the child’s best interest to live with that parent, consistent with the child’s wishes.

The experience of a child custody lawyer is very helpful here. It ensures the parent properly presents the information to the court through admissible evidence.

Conditioning and parental alienation as undue influence over the child’s preference in custody

Our child custody lawyers have seen it firsthand in cases. We’ve had situations where a child has specifically expressed a preference to live with the other parent. However, upon our investigation and evaluation, we learned that the child’s preference was the result of the emotional abuse, pressure or alienation.

All of these can factor into a child’s choice. A vigilant parent must be careful not to simply let the child’s preference be heard without knowing the real reasons for that preference in custody.

If your child states a preference in custody, what is your next step?

We handle family law matters in Orange County, Los Angeles County and each of the other five Southern California counties. Contact us for help. We have offices in Orange County and Los Angeles. 

You may also complete the form at end of this website page. Let’s schedule an initial strategy session to meet, regardless of whether you are the parent who seeks custody based on the child’s preference or the one opposing it.

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