Child’s Custody Preference Matters | California Law

Child custody arrangements and awards are a component of divorce. Children affected by divorce are legally entitled to weigh in on who they prefer to live with. If you are going through a divorce, it is important to understand how and when your child may contribute to the custody conversation.

Family Law | Alimony | Divorce Decree Modifications | Tennessee

Child custody arrangements and awards are a necessary component of a divorce. In California, children who are affected are legally entitled to weigh in on the situation. If you and your spouse are getting divorced, it is important to understand how and when your child may contribute to the custody conversation. 

IS your child testifying in court?

Years ago, California courts did not give much weight or value to a child’s preference or point of view in a divorce. Relatively recent changes in the California Family Code caused a shift in the practice of listening to our children. Courts hearing child custody matters are now legally required to listen to a child’s input in certain situations.

California Family Code Section 3042 gives children the right to weigh in on important child custody determinations. Specifically, children who are “of sufficient age and capacity to reason…to form an intelligent preference” may offer their insight when custody and visitation are being decided. Courts are required to hear the testimony if a child is over the age of 14. Courts may choose to hear from children under the age of 14 if they believe the child is mature enough to make intelligent decisions. 

Child's Preference in custody dispute

Courts are not required to blindly follow a child’s preference. A court is required to make a child custody determination that serves the best interest of a child. This often involves keeping the child in frequent and continuing contact with both parents; resisting plans to relocate children away from established routines, schools, friends, and caregivers; and finding a way to keep siblings together under one roof. If a child’s preference blatantly flies in the face of what the court believes to be in his or her best interest, the court may decide to disregard the testimony. In most cases, however, the child’s input is given considerable weight. How, though, do courts decide how much weight a particular child’s testimony should have? 

Courts are only required to “give due weight” to a child’s preference for custody or visitation. The older the child is, the more likely it is that the court will give his or her testimony substantial consideration. A child who testifies in a child custody matter will generally be asked to thoroughly explain why he or she has a preference for living with one parent over the other. The answer to this question will generally be the most important. 

If a 14-year-old child explains that she only wants to live with her mom because her dad refuses to let her stay up to watch her favorite television show at 11 pm, a court will probably not put too much stock in that child’s testimony. On the other hand, a 16-year-old child explains that he would prefer to live with his father because he doesn’t want to move and disrupt his life at school, a court will probably be more inclined to give that testimony substantial weight. The reason(s) behind the preference will be telling. Good reasons will motivate the court to listen to the child. 

How does a child actually testify in a child custody matter? In California, a child may choose to testify in court, testify in chambers, or testify outside of court in the presence of a court-appointed specialist. If a child does testify in court, a judge can require attorneys to limit their line of questioning to avoid embarrassing or harassing the child. However, if a child testifies in chambers, he or she will be free to testify outside of the presence of their parents and large audience. Even if a child does not testify in court, a judge can appoint a mediator, attorney, or investigator who will speak with the child. The child will “testify” to this court-appointed individual. That individual will then testify in court as to the child’s wishes and preference. 

Contact a divorce attorney

In California, children are given the opportunity to contribute to a court-determined child custody arrangement. Courts are generally required to hear the child’s testimony but are not bound by what the child wants. Instead, courts will use the child’s preference as one of many deciding factors. Contact Berenji & Associates Divorce Lawyers in Los Angeles, CA for more information about how your child’s preference may affect your child custody hearing and divorce. 

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