California Child Custody Modification Based on the Child’s Preference: Defenses

Learn about modifying child custody based on the child's preference, and how you can defend it.

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The passage of California Family Code section 3042 on January 1, 2012 was a big deal. The new code section brought clarity an area of California child custody law that varied from court to court and judge to judge.

Section 3042 states that a child who is of "sufficient age and capacity to reason" so as to form an intelligent preference as to custody and visitation shall have a voice and the opportunity to express that preference. If the child is 14 years of age or older, the child shall be allowed to state the preference unless the court finds that doing so is not in the child’s best interest. if the child is under the age of 14, the child can still state his or her preference and how the child does so is up to the Court, as it determines to be in the child’s best interest.

In this article, we will look at options available to you if you are on the receiving end of a request from the other parent that your child prefers not live with you and, therefore, live with the other parent. This article presumes the reasons for the child's preference are not consistent with the child's best interest.

(To learn more about the child's best interest standard, see The Best Interests of the Child.)

This article is not legal advice and is not a substitute for legal advice. This article is not intended to deal with your specific facts or issues. You should seek the advice of an experienced child custody lawyer before proceeding.

Let's first take a look at some ways that parents may influence children to state a preference.

Parental Conditioning

With parental conditioning, a child’s preference is not his or her own. Parents use guilt, emotional pressure and other methods to force the child to state a preference. This conditioning comes in many forms.

Parental Alienation

Parental alienation are actions taken by one parent to harm the other parent's relationship with the child. Parental alienation also comes in many forms but the intended result is often the same - to create a damaging division between a parent and child such that the child does not wish to spend time with the alienated parent.

Escape from Discipline

Children, especially teenagers, sometimes state a preference because they believe living with the other parent will be less stressful from an academic or social perspective. If one parent undermines the other’s parent’s discipline and provides the child with an atmosphere where the child believes he or she can "get away" with not doing homework, studying, or escaping necessary boundaries (typically with friends or a boy or girlfriend), the child may be improperly influenced enough to state a preference to live with the non-disciplinarian parent.

Emotional Abuse

This goes beyond conditioning. In some cases, parents can so seriously emotionally abuse their children that the children begin to "act out" against the other parent, resulting in false abuse allegations. These manufactured abuse allegations are then used by the parent committing emotional abuse to claim a needed change in custody and the child's preference is used at that time for leverage.

Defenses to the Modification Request

How do you fight against a child's preference request that results from such circumstances? Here is a starting point.

Step one: Are there witnesses to the other parent's misconduct?

Conditioning, alienation and abuse don't always go unnoticed. Family members, friends, teachers and others who have personal knowledge of the situation can be valuable witnesses who give affidavits or live testimony to support your claims. Has the child been in therapy? Under certain circumstances, the therapist can be an important witness to your case.

Step two: Are there documents to the other parent's misconduct?

Have you been documenting the other parent's behavior? Have you asked him or her to stop the conduct? Text messages, emails, letters, voicemails, anything that can document the misconduct will be helpful.

Step three: Is a minor's counsel or forensic psychological evaluator needed?

Family courts can appoint a lawyer for the children or a psychological evaluation to be conducted to better understand the reasons for the child's preference. This is especially necessary in cases where serious parental alienation or emotional abuse is involved.

Step four: Is the other parent unfit to have more time?

Just because a child states a preference does not mean the Court has to follow that preference. If the child’s health, safety, education or general welfare would be adversely affected by a change in custody or additional visitation time to the other parent, you must bring these facts to the Court’s attention.

Step five: Do you need an experienced child custody lawyer?

Regardless of whether the other parent is represented, you should consider the help of an experienced child custody attorney. Not only may such an attorney assist you in court but you may find that you have pre-hearing options available to you such as taking the depositions (testimony under oath) of the other parent and witnesses to obtain testimony consistent with your position and helping to choose a minor’s counsel or psychological evaluator that is right for your case.

More than ever, California family courts may allow a child to state a preference. However, if your situation is such that the preference is inconsistent with the child’s best interest, you may owe it to yourself and your child to do the right thing and not allow an abusive or alienating parent to obtain custody or additional parenting time.

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