Can Children Express Preference in California Custody Proceedings?

Wondering whether children can make their own decisions about custody? Learn more here.

Determining a child’s custody arrangement can be the most difficult task for separating parents. In addition to parents usually having different opinions on custody and visitation, the child also usually wants to have a say in where he or she ends up living. Many states have laws requiring the court to consider the child’s preference when determining custody.

This article will explain how a child’s preference affects custody in California. If you have additional questions about the effect of a child’s custodial preference in California after reading this article, you should  consult a local family law attorney.

Overview of Custody Decisions in California

California courts will make custody determinations for children whenever the parents can’t agree on a custody arrangement themselves. The judge must consider a number of factors when deciding custody, including the following:

  • each parent’s history of caregiving for the child
  • each parent’s ability to be a fit parent
  • the stability in each parent’s household
  • the child’s health and safety
  • either parent’s history of abuse or domestic violence
  • either parent’s use of drugs or alcohol
  • which parent is more likely to encourage a relationship between the child and the other parent
  • whether either parent has made a false allegation of abuse against the other parent to gain an advantage in the litigation
  • the residence of the child’s siblings
  • the child’s preference, and
  • any other factors relevant to the child’s welfare.

To read more information about custody decisions in California, see  Child Custody in California: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

California courts must consider a child’s preference when the child is of sufficient age and ability to voice an intelligent opinion on custody or visitation. If a child is at least 14, he or she will always be allowed to state a custodial preference. A child younger than 14 years old will be allowed to testify about his or her custodial preference unless the court decides it’s not in the child’s best interest to do so. If the court precludes a child from testifying about his or her preference, the judge must provide another way for the child to express his or her opinion, such as through a custody evaluator.

There is no specific age when a judge will listen to a child’s opinion. Courts have considered the custodial preferences of children as young as seven or eight.

The court doesn’t have to follow the child’s preference; the judge decides how much weight to give to the child’s preference. Courts will generally give more weight to older children’s opinions than those of younger children.

The judge will also consider the child’s reasons for preferring one parent over the other when deciding how much weight to give the preference. For example, in a case where a boy testified that he wanted to live with his father because he was less strict than his mother, the court decided not to give that opinion much weight. In another case, however, a child stated that he wanted to live with one parent because it was closer to his friends and the school he had attended his entire life; the judge gave a lot of weight to this child’s preference.

Do Children Have to Testify About Their Custodial Preferences in Court?

In California, the judge decides whether the child will testify in court on a case-by-case basis. The court is more likely to allow a child to testify in court if the child is older or particularly mature. However, the judge will never force a child to testify in court if the child doesn’t wish to do so. When a child testifies in court, the judge can limit the questions that the attorneys ask to make sure the child is protected from harassment or embarrassment.

If the child doesn’t testify in court about his or her custodial preference, the judge can use other ways to get the child’s input. For example, the judge can appoint an evaluator, investigator or mediator to speak with the child and then testify in court about the child’s preference. Also, a guardian ad litem (attorney representing the child) may also testify about the child’s opinion on custody.

Alternatively, the court may choose to have the child testify in chambers, outside of the presence of the parents; judges often do this with younger children, or when the child is likely to testify about sensitive topics. When a child testifies in judge’s chambers, the court reporter and attorneys must still be present unless the parents agree that the judge can speak with the child alone.

If you have additional questions about the effect of children’s custodial preferences, contact a California family law attorney for help.

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