Can Children Express Preference in California Custody Proceedings?

Determining a child's custody arrangement can be the most difficult task for separating parents. In addition to parents having different opinions on custody and visitation, the child also usually wants to have a say in custody. 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. (Cal. Fam. Code § 3011.)

The court won't give a preference for custody to one parent over the other based on either parent's gender. Instead, the court must weigh each of the above factors equally. (Cal. Fam. Code § 3040 (c).)

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 and give weight to a child's preference when the child is of sufficient age and ability to voice an intelligent opinion on custody or visitation. (Cal. Fam. Code § 3042 (a).) If a child is at least 14, the law allows the child to state a custodial preference, unless the judge believes doing so would be detrimental.

Although the law specifically permits children at least 14-years-old to express an opinion, there is no specific age when a judge will listen to a child's opinion. California statutes also permit a child younger than 14 years old to testify regarding a 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 a custodial preference, the judge must provide another way for the child to express an opinion, such as through a custody evaluator. (Cal. Fam. Code § 3042.)

It's important to understand that just because the law permits a child to express an opinion doesn't mean the judge has to follow the child's preference. Children can't choose where to live until they are 18 years old.

Each case is different, and the judge will decide how much weight to give to the child's preference using broad discretion. Courts will generally give more value 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 that parent lived 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 protect the child from harassment or embarrassment.

If the child doesn't testify in court about 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, the court may ask a guardian ad litem (attorney representing the child) to testify about the child's opinion on custody. (Cal. Fam. Code § 3042 (f).)

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 a 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.

Can Custody Orders Change?

It's a general rule of thumb that stability is best for children when it comes to custody. However, it's also common knowledge that as children grow up, circumstances may change enough to warrant a new custody order. Like most custody issues, it's always best to have a conversation with the child's other parent regarding a change in custody.

If you can agree on new terms, the court will approve your agreement and create a new custody order for you. If you can't agree, however, the court will need to evaluate your case to determine whether a modification is necessary.

The requesting parent must file a formal motion with the court that explains why a modification is in the child's best interest. (Cal. Fam. Code § 3087.) Additionally, you'll need to provide a compelling reason for your request.

Courts are hesitant to uproot a child from a successful custody arrangement, so it's your responsibility to explain to the court what change in circumstances supports a chance to custody since the last order was issued.

If the court agrees that it would benefit the child to change the custody order, the judge will evaluate the best interest factors and the child's opinion (if the child is at least 14 years old.) (Cal. Fam. Code § 3042.) However, the court has discretion when it comes to a younger child's opinion or preference.

If you have additional questions about the effect of children's custodial preferences, contact a California family law attorney for help. If you'd like more information on the basics of custody and visitation, or if you need self-help forms, visit the California Courts website.