HOW IS A CHILD’S PREFERENCE AND CHOICE IN CUSTODY DETERMINED?

Does a child get to decide with what parent he or she lives? It is more complicated than that.

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

Let's go through how a child's preference to live with a parent impacts child custody cases

How is a Child’s Preference and Choice in Custody Determined?A child’s preference in custody including who the child chooses to live with, how the child can state that choice and when (at what age) the child can make the choice have evolved in the last many years in the State of California. There was a time in California family courts that a child’s choice was somewhat of a nuisance concept to family law judges and not a strong consideration in California custody and visitation cases until the child reached his or her late teenage years.

However, as child custody laws in California became more progressive and with the passage of Family Code section 3042 and its companion in California Rules of Court 5.250, children have 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.

To contact us, complete the form at the end of this article or call us at any one of our two offices in Orange County.

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

Pursuant to Family Code 3042, when evaluating a child’s choice regarding custody and visitation, 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.

While there is no magical significance to the age of 14, the California legislature has drawn that line at that age because the legislature believed that at age 14, 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 because this is also the age children go through some emotional turmoil as they try and find their place in the world and it is not unusual for a child at this page to engage in rebellion and 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

It should not be assumed that 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.

For example, with a child who is a teenager and older than the age of 14, the court is not required to follow the child’s preference if it 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 is not mandated to cut off all visitation even if the child requests it from the court. If a child comes to court and he or she states a preference to be in the sole custody of one parent and not be required to see the other, the family court has the wide discretion to still order visitation with the other parent and can even make orders such as 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?

More family law judges are choosing a direct approach and hearing 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:

  1. The location of the testimony, including the option of closing the courtroom to the public or hearing the testimony in chambers;
  2. Whether the parents, attorneys or neither of them should be present when the court takes the child’s testimony. Regardless, it is almost assured that a court reporter will be present and taking 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’s testimony is taken;
  3. The manner in which the child will be questioned including whether it will just be the judge or whether the lawyers or the parents will be allowed to question the child. The parents will almost certainly not question the child if they are represented by a lawyer.

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

  1. Participation in mediation under Family Code section 3180;
  2. Appointment of a child custody evaluator or investigator. If the child’s preference is not as straightforward as it may seem and there are issues regarding undue influence, parental alienation, or other emotional or psychological abuse or the court simply believes that the child’s preference must be investigated further because of the particular facts of the case including 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;
  3. Admissible evidence and testimony of the parents or witnesses;
  4. Through a child custody recommending counselor pursuant to Family Code section 3183(a); and
  5. Through a child interview center or professional

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

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.

For a child’s preference in custody to be heard, the most common way to do it is for the parent who seeks custody to file a formal request for order with the court and state 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.

Here, the parent, through a delicate balancing of stating the child’s preference in custody but not pressuring the child to choose, should state specific facts as to 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 to ensure the information is properly presented 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 but, 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 things can factor into a child’s choice and a vigilant parent must be careful not to simply let the child’s preference be heard without also a full review as to the foundation and the reasons for that preference in custody.

Your child’s preference in custody and 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. Early communication with us is important but even if you find yourself in the middle of a contested child custody case based on the child’s preference, contact us today for an evaluation of your child preference case and its facts.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
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