One of the most common questions asked by divorced parents is whether their child has the right to choose which parent they want to live with. This is an emotionally charged question, and the legal answer may be more complex than some people expect. In California, a child’s decision on custody does not have absolute power, but their input can be significant, depending on their age and maturity. The court will take into account various factors, including the child’s best interests and the parents’ abilities to provide for them.
What California Law Says About a Child’s Preference
Under California Family Code § 3042, if a child is old enough and has the capacity to understand, the court should take their wishes into account when making decisions about custody and visitation. The law specifically states that if a child reaches the age of 14 or older, they must be allowed to express their views in court, unless a judge believes it is not in their best interests.
For children under 14, the court has discretion to consider their preferences, but is not obligated to do so. The judge decides whether the child is old enough to form an informed and independent opinion free from parental influence or coaching.
The Child’s Preference Is One Factor, Not the Final Word
Even when a child expresses a clear preference, it is not always automatically respected. California courts use the “best interests of the child” as the guiding principle for all custody decisions. The child’s expressed preference is just one factor among many that the court considers, including:
- Each parent’s mental and physical well-being
- The stability and continuity of the child’s home environment
- The child’s adaptation to school and community
- Any history of domestic abuse, substance abuse, or emotional trauma in the household
- Opportunities for each parent to maintain relationships with extended family
A teenager who prefers to live with a parent who is more permissive may have that preference taken into account less, if the court believes that the other household will better serve the child’s long-term interests.
How Courts Hear a Child’s Preference
California courts use several methods to find out about a child’s wishes, without putting the child in an uncomfortable position of having to testify against a parent in court:
- Minor’s Counsel: Under Family Code § 3150, a court can appoint an independent lawyer to represent the child’s best interests and let them express their preferences to the judge.
- Custody Evaluator Interviews: A qualified mental health professional can privately interview the child and submit a confidential report with recommendations to the court.
- In-camera Testimony: In certain circumstances, a judge can talk with the child privately, away from parents and lawyers, in their chambers.
These approaches help protect children from getting caught up in parental conflicts, while still allowing them to be heard and taken seriously.
Parental Influence on a Child’s Stated Preference
Courts are keenly aware that children may be coached or influenced by their parents to express a preferred outcome, rather than their own true wishes. Judges and assessors are trained to recognize signs of parental manipulation or undue influence.
If a court determines that a parent has pressured a child to state a specific preference, this conduct can be taken into account heavily when making custody decisions. This can potentially affect the entire custody arrangement.
What This Means for Your Custody Case
If your child has expressed a strong desire about where they would like to live, it is important to take their opinion seriously. However, this must be done through appropriate legal channels. Consulting with an experienced family lawyer can ensure that your child’s voice is heard in court in a credible and effective way. Additionally, if you suspect that the other parent is influencing your child’s decision, your lawyer can help gather evidence and present it in court to support your case.
Custody orders once established are difficult to change. Under California’s Family Code § 3087, a change typically requires proof of a significant change in circumstances. It is crucial to get the arrangement right from the beginning with skilled legal representation.
Contact Roberts & Zatlin to schedule a free consultation today.
