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 does a child's preference to live with a parent affect a child custody case?
A child's preference in custody includes the following:
- With whom the child chooses to live,
- How the child can state that choice, and
- 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.
Over the years, both California Family Code 3042 and California Rules of Court 5.250 have changed. What we write here are the rules as of 2023.
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.
A child's preference in custody and Family Code 3042
California Family Code 3042, as of January 1, 2023, specifically states:
(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 interest 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 interest, in which case, the court shall state its reasons for that finding on the record.
(d) This section does not 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 interest.
(e) If the court precludes the calling of a child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child's preferences.
(f) (1) Except as provided in paragraph (2), the court shall not permit a child addressing the court regarding custody or visitation to do so in the presence of the parties. The court shall provide an alternative to having the child address the court in the presence of the parties in order to obtain input directly from the child. (2) Notwithstanding paragraph (1), the court may permit the child addressing the court regarding custody or visitation to do so in the presence of the parties if the court determines that doing so is in the child's best interest and states its reasons for that finding on the record. In determining the child's best interest under this paragraph, the court shall consider whether addressing the court regarding custody or visitation in the presence of the parties is likely to be detrimental to the child.
(g) To assist the court in determining whether the child wishes to express a preference or to provide other input regarding custody or visitation to the court, a minor's counsel, an evaluator, an investigator, or a child custody recommending counselor shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party's attorney may also indicate to the judge that the child wishes to address the court or judge.
(h) If a child informs the minor's counsel, an evaluator, an investigator, or a child custody recommending counselor at any point that the child has changed their choice with respect to addressing the court, the minor's counsel, evaluator, investigator, or child custody recommending counselor shall, as soon as feasible, indicate to the judge, the parties or their attorneys, and other professionals serving on the case that the child has changed their preference.
(i) This section does not require the child to express to the court a preference or to provide other input regarding custody or visitation.
(j) The Judicial Council shall, no later than January 1, 2023, develop or amend rules as necessary to implement this section.
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.
However, the open court option (in front of the parents) is less likely now because of the changes made to Family Code 3042 and California Rules of Court 5.250.
The family law judge does not have to directly hear from the child
Both Family Code 3042 and California Rules of Court 5.250 give the court many options to hear the child's preference in custody.Rule 5.250 sets forth other options (we quote part of this Rule as of January 1, 2023):
"(e) Guidelines for receiving testimony and other input
(1) If the court precludes the calling of a child as a witness, alternatives for the court to obtain information or other input from the child may include, but are not limited to:
(A) The child's participation in child custody mediation under Family Code section 3180;
(B) Appointment of a child custody evaluator or investigator under Family Code section 3110 or Evidence Code section 730;
(C) Admissible evidence provided by the parents, parties, or witnesses in the proceeding;
(D) Information provided by a child custody recommending counselor authorized to provide recommendations under Family Code section 3183(a); and
(E) Information provided from a child interview center or professional so as to avoid unnecessary multiple interviews.
(2) If the court precludes the calling of a child as a witness and specifies one of the other alternatives, the court must require that the information or evidence obtained by alternative means and provided by a professional or nonparty:
(A) Be in writing and fully document the child's views on the matters on which the child wished to express an opinion;
(B) Describe the child's input in sufficient detail to assist the court in its adjudication process;
(C) Be provided to the court and to the parties by an individual who will be available for testimony and cross-examination; and
(D) Be filed in the confidential portion of the family law file."
When hearing a child's preference, which approach is the most common?Of the options listed above, the most common are:
- Through minor's counsel, which is a lawyer for the child or children.
- Participation in mediation under Family Code section 3180.
- Appointment of a child custody evaluator or investigator.
- Through a child custody recommending counselor pursuant to Family Code section 3183(a).
- Through a child interview center or professional.
Regardless, 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.
In addition, 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.
These issues can come up regardless of how much parenting time the parents share. We have seen child's preference issues come up in situations where the parents have a 50/50 custody schedule and those where one parent has 80% or more of the parenting time.
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?
Do not settle for anything less than experienced California family law representation. Good men and women deserve great family law representation. Ready to talk? Give us a call. We are ready to help.