When parents are getting divorced or separating, the most challenging issues they face are usually related to physical and legal custody of their children—where the kids will live, how often each parent will see them, and how parents will make important decisions concerning their children.
Unfortunately, some parents who are in a custody battle overlook what the children themselves want, or—even worse—they try to manipulate or coerce a child into choosing sides. In California, judges may sometimes consider the children's preferences about custody. But that doesn't necessarily mean the judges have to go along with those wishes.
When parents aren't able to reach an agreement about custody and visitation (sometimes called a parenting plan), a judge will have to decide for them. In California, as in all states, the overriding principle in all custody disputes is that the judge must decide what's in the child's best interests. (Cal. Fam. Code § 3020(a) (2023).)
How do judges make that decision? California's child custody laws provide a list of factors judges must consider. (Cal. Fam. Code § 3011 (2023).) A child's custody preference isn't on the list.
Does that mean a child's wishes won't make a difference in a judge's custody decision? Not at all. First of all, the law also requires judges to consider any relevant factors that affect what's best for the child, not just the ones listed.
More importantly, California has a separate statute on the issue of a child's wishes. That law says that when a child is mature enough to form an "intelligent preference" about custody or visitation, the judge must consider and give "due weight" to the child's wishes. (Cal. Fam. Code § 3042(a) (2023).)
Children don't have to be a particular age for judges in California to hear and consider their custody preferences—they simply must be mature enough to be capable of intelligent reasoning on the issue. But the law does set different standards, based on age, for when judges must allow children to state their custody wishes in court:
(Cal. Fam. Code §§ 3042(c), (d) (2023).)
Although children may be entitled to have their wishes heard in custody disputes, judges aren't required to follow those preferences. As a practical matter, the older children are, the more weight judges are likely to give their opinion about which parent they want to stay with most of the time, and how much time they want to spend with the other parent.
But regardless of age, judges won't follow children's preferences if it wouldn't be in their best interests. Judges will pay particular attention to the reasoning behind a child's wishes. For instance:
Also, the child's preference will only be one of the circumstances that a judge will look at when deciding on the parenting arrangements that would be best for the child. For instance, even if an older teenager wants to live with his father, a judge isn't likely to award the father sole physical custody if the evidence shows that he uses illegal drugs and has a history of domestic violence.
Although children may be allowed to testify in open court, a judge might decide that would be too difficult or stressful for the child. If that's the case, the judge must still provide a way to hear the child's opinion. There are different ways of accomplishing this:
In order to save kids from having to take sides on the custody issue in front of their parents, California law says that parents shouldn't ordinarily be present when their kids are testifying in court or speaking with the judge in private. But a judge may allow the parents to be present if it wouldn't be harmful to the child. (Cal. Fam. Code §§ 3042(e), (f) (2023).)
It's not unusual for judges to appoint a trained professional (typically a psychologist or social worker) to conduct a custody evaluation. The evaluator will report back to the court with information about the child's preferences, along with the expert's observations and opinions about what would be in the child's best interests.
It's important to note that there's nothing in the law that requires a child to express a custody preference or to provide any other input regarding custody or visitation. (Cal. Fam. Code § 3042(i) (2023).).
As in most other states, children in California aren't allowed to refuse to visit a parent under existing visitation orders until they reach adulthood (18 years of age) or otherwise become legally emancipated.
If a child is refusing visitation, the parent with primary physical custody (the "custodial parent") has the responsibility to do everything possible to get the child to cooperate. A custodial parent may not shift the blame to the child for failing to obey a court's order regarding visitation.
Of course, as any parent knows, as children get older it can be difficult to make them do something they absolutely refuse to do. California courts have acknowledged this dilemma. In one case, a trial judge held a mother in contempt of court because her 14 year old daughter refused to visit with her father, in violation of the existing visitation order. But a higher court overturned that decision, citing the daughter's age and her "strong wishes" not to visit with her father, as well as a lack of evidence that the mother had the ability to force the teenager to obey the visitation order. (Coursey v. Superior Court (Coursey), 194 Cal.App.3d 147 (Cal. Ct. App. 1987).)
Judges recognize that existing custody arrangements and visitation schedules might become less appropriate as children age or the parents' circumstances change. That's why California custody laws allow parents to request a change in custody or visitation. Unless you and the other parent have agreed on a change, you'll need to prove that there's been a substantial change of circumstances since the current custody or visitation order was issued, and that the modification you're requesting would be in the child's best interests. (In re Marriage of Carney, 24 Cal.3d 725 (Cal. 1979); Speelman v. Superior Court (Speelman) 152 Cal.App.3d 124, (Cal. Ct. App. 1984).)
The provisions for hearing a child's opinion on custody or visitation (as discussed above) will apply in disputed modification proceedings.
You may avoid lengthy and expensive court battles over custody disputes if you and the other parent can reach an agreement on the issue. If you're having trouble agreeing on your own, custody mediation may be a way to work through your obstacles. In fact, California requires mediation of custody issues if parents haven't already reached an agreement by the time they file for divorce or request any custody order.
But if mediation doesn't work, you should strongly consider speaking with a lawyer. Court battles over custody can be complicated and difficult for lay people to navigate successfully. An experienced family law attorney can help you gather the evidence you'll need to convince the judge that the custody and visitation arrangements you're seeking will be best for your child.