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

A child's preference in custody can include:

1. The child's choice of which parent to live with,
2. The method by which the child expresses that choice, and
3. The age at which the child can choose.

Let's take a closer look at a child's preference in custody cases. Here are the topics we will cover. You can click on any of the links to jump ahead.

Child's Preference and Custody Topics We Will Cover

1. How a Child's Choice in California Custody Cases Has Changed Over Time
2. The Child's Preference and California Family Code 3042
3. When a Child's Preference Matters: Children Aged 14 and Older
4. Why a Child's Preference Doesn't Always Decide the Outcome in Family Court
5. Ways a Child Can Express Their Custody Preference
6. Parental Alienation and Conditioning: The Hidden Influences Behind a Child's Preference
7. What Should You Do Next?

How a Child's Choice in California Custody Cases Has Changed Over Time

There was a time when a child's custody preference wasn't considered until they reached their late teens. However, California's child custody laws have evolved. With the introduction of Family Code 3042 and its companion in California Rules of Court 5.250, children now have a greater voice in expressing their custody preferences.

Family Code 3042 and California Rules of Court 5.250 have been updated over the years, with the rules discussed here reflecting the latest changes as of 2023.

In this section, we will explore how a child can choose which parent to live with and at what age they can choose.

The Child's Preference and California Family Code 3042

As of January 1, 2023, California Family Code 3042 outlines specific guidelines for considering a child's preference in custody cases:

"If a child is of sufficient age and has the capacity to form an intelligent preference regarding custody or visitation, the court must consider and give appropriate weight to the child's wishes when making or modifying custody or visitation orders.

The court is responsible for ensuring that a child witness is protected during their examination, keeping their best interests in mind.

If a child aged 14 or older wishes to address the court regarding custody or visitation, they must be allowed to do so unless the court deems it not in the child's best interest. The court must record its reasons for such a decision.

Children under 14 may also be allowed to address the court if the court determines it is in their best interest.

If the court does not allow a child to testify, alternative methods must be provided to gather input regarding the child's preferences.

Generally, a child addressing the court should not do so in the presence of both parties. However, if the court finds it is in the child's best interest, they may allow it with documented reasons.

To determine whether a child wishes to express a preference, a minor's counsel, evaluator, investigator, or child custody recommending counselor can notify the judge, or the judge may inquire on their own. Additionally, a party or their attorney can request that the judge allow the child to speak.

If a child changes their preference during the case, the professionals involved must notify the judge, the parties, and their attorneys as soon as possible.

This section does not require a child to express a preference or provide input regarding custody or visitation.

The Judicial Council must develop or amend rules as necessary to implement these guidelines by January 1, 2023."

When a Child's Preference Matters: Children Aged 14 and Older

The court must consider the preferences of children aged 14 or older unless it determines that doing so would not be in the child's best interest. For children under 14, the court first needs to decide if listening to the child's preference is in their best interest.

Understanding the Age 14 Benchmark

The age of 14 has no magical significance, but California lawmakers believe that by this age, children generally have the emotional maturity to make reasonable and relevant choices.

If you're a teenager's parent, this might be a surprise. This is also an age where children often experience emotional turbulence as they seek their place in the world. It's common for them to act out or use the preference option to avoid discipline. But before you get too concerned, keep reading.

Why a Child's Preference Doesn't Always Decide the Outcome in Family Court

It's important not to assume that a child's preference will automatically determine the outcome in court, regardless of their age. Family law judges have the discretion to consider a child's preference, but they are not obligated to follow it entirely.

If the court believes the child's choice is insincere or is being used to manipulate the situation, they may choose not to honor that preference. Even if a child has a genuine reason for their choice, the court may still order visitation with the other parent, even if the child requests to cut off all contact.

For example, if a child prefers to live solely with one parent and not see the other, the family court can still order visitation. The court might also require court-ordered counseling, reunification programs, or other measures to repair the relationship between the child and the other parent.

Ways a Child Can Express Their Custody Preference

Some family law judges may hear directly from the child, either in chambers or open court. However, due to changes in Family Code 3042 and California Rules of Court 5.250, it's now less common for a child to express their preference in front of both parents.

The Judge Doesn't Have to Hear Directly from the Child

Family Code 3042 and California Rules of Court 5.250 provide various ways for the court to understand a child's custody preference without directly hearing from the child.

Rule 5.250 outlines several alternatives (as of January 1, 2023):

Common Methods for Hearing a Child's Preference

The most common ways a court may learn about a child's preference include:

• Through the minor's counsel, who is a lawyer representing the child;
• Participation in mediation under Family Code section 3180;
• Appointment of a child custody evaluator or investigator;
• Through a child custody recommending counselor as per Family Code section 3183(a); and
• Through a child interview center or other professionals.

However, the child's preference may not be as simple as it seems. Factors like undue influence, parental alienation, or other forms of emotional or psychological abuse can complicate matters.

Additionally, the court may require an investigation into the child's history of care and control. The court can appoint an independent child custody 730 evaluator to investigate these issues and provide recommendations.

These concerns can arise regardless of how much parenting time each parent has. Issues around a child's preference can occur in both 50/50 custody schedules and in cases where one parent has 80% or more of the parenting time.

How to Present a Child's Preference to the Court

The most common approach is for the parent seeking custody to file a formal request with the court. In this request, the parent should state that the child has preferred to live with them or wishes to spend more time with them.

The parent must carefully present the child's preference to the court, ensuring they do not pressure the child while still conveying the most important facts. This includes explaining the current living arrangements and why it would be in the child's best interest to live with that parent, in line with the child's wishes.

The expertise of a child custody lawyer is invaluable in this process. A skilled lawyer can help ensure the information is correctly presented through admissible evidence.

Parental Alienation and Conditioning as the Hidden Influences Behind a Child's Preference

In our experience handling child custody cases, we've encountered situations where a child expresses a strong preference to live with one parent. However, upon closer investigation, we discovered that the child's choice was influenced by emotional abuse, pressure, or parental alienation.

These factors can significantly impact a child's decision. A vigilant parent must be cautious and not accept the child's preference at face value without understanding the underlying reasons for that choice.

What Should You Do Next?

Don't settle for anything less than experienced family law representation. Every parent deserves exceptional legal support. Ready to discuss your case? Contact us today. We're here to help.