Does My Child’s Custody Preference Count?

Child custody is often one of the most contentious aspects of divorce. In fact, it’s often one of the reasons that divorces extend into costly litigation. There are several aspects that factor into a final custody arrangement, but the most important is what is in the best interest of the child. California law assumes that a child will benefit from an active relationship with both parents, and there are select situations that result in sole custody. When determining the best interest of the child, the courts look at several factors that help them arrive at a custody decision.

California Divorce Law and Your Child

In the past, the conventional thinking was that children should not be involved in the divorce process. Divorce was an adult matter; therefore, it was adults who ultimately decided what was in the best interest of the child. Until recently, only older teenagers had a say in what was in their best interest with regard to custody. In recent years, however, California child custody law has evolved to involve a child’s preference for the parent he or she wants to live with, and the age at which a child can have a say has been modified.

In January of 2012, California Family Code Section 3042 took effect and drastically changed the way courts view child preference. The law states in part: “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.”

Remove the legalese, and the rule is essentially this: the law does not require those 14 and older to testify, but the courts are required to hear their testimony if they wish to state a custodial preference. If a child under the age of 14 wants to state a custodial preference, they may testify at the discretion of the presiding judge.

These changes are significant, as previous California law severely limited the circumstances in which a child could testify. While no law requires a child to testify, a child may if they want to. The biggest difference, however, is that the courts must listen to testimony if the child is over the age of 14. A notable exception occurs when the courts think it would be in the best interest of the child not to testify, but they must list these reasons for the court. For children under the age of 14, the court must weight its duty to serve the best interests of the child and how the child’s preferences play a role.

It’s important to note that a judge can or must listen to a child’s preferences, but they’re not required to adhere to every aspect of their preferences. A child might request sole custody with one parent, for example, but the courts are not required to grant it.

Your child’s preference may play a role in the custodial arrangement depending on their age and testimony. If you have further questions, direct them to your San Diego child custody attorney.