Should My Children Have a Say in Custody?

In California, the family courts make all decisions based on a child’s best interests. Deciding custody matters is one of the most important factors in determining a positive outcome for the children of divorced parents. Since ultimately the court wishes to make a decision in the best interest of the child, a child’s preference is one factor that most judges consider when making the decision. However, the final decision is based on the child’s best interests over a child’s preference. Many divorcing parents in California wonder, “Should a child have a say in the custody decision, and how important is the child’s opinion to a judge?”

How Courts Decide When to Hear a Child’s Custody Preference

In the past, California’s laws on when a child was considered old enough to express a preference in a custody hearing were vague, stating that a child had to be only of “sufficient age and capacity to reason” for a judge to consider their preference. As of 2010, the California Family Code Section 3042 clarified the matter by specifying that children aged 14 and older are of sufficient maturity to express a clear opinion on their own custody preferences. In some cases, a judge can deny a request to hear a child’s expressed opinion if they feel it isn’t in the child’s best interest or could be detrimental. For example, when expressing an opinion might negatively impact their relationship with one or both parents. In some cases, a judge might request a meeting in chambers rather than in open testimony in court to protect a child from having to testify in front of both parents. In complex cases, a judge might order a family therapist to interview a child about their preferences for custody and visitation.

Will a Judge Hear a Child’s Opinion on Custody If They Are Under Age 14?

While the family code compels a judge to consider a child’s opinion in custody matters once they are age 14 or older and they wish to express an opinion, it doesn’t prevent a judge from hearing the opinion of a younger child if they wish to consider it as part of their assessment. This is a matter left to the discretion of an individual judge and based on the circumstances of the case, as well as the maturity level of the child. A judge may or may not feel that a child younger than age 14 should testify and may request it if they feel that participating in the decision is in the child’s best interests.

While a judge may request a child’s expressed opinion, they will not compel a child to testify in a hearing if they don’t want to. If a child does testify in open court, a judge has the right to limit the questions the parent’s child custody attorneys can ask in order to protect the child from distress or harassment.

How Important is the Child’s Opinion in California Child Custody Cases?

While a child’s opinion about their own living arrangements and time with each parent is important, it’s only one factor out of many in the judge’s decision. Family court judges evaluate a child’s testimony and can often determine if the child has been conditioned by one parent to express a preference for them and a negative attitude toward the other parent. In some cases, threats or bribes may also play a role in a child’s testimony. If a judge suspects undue influence over a child’s testimony they will place less importance on the child’s statements. Also, if a child doesn’t appear mature enough to fully grasp the situation, a judge is less likely to heavily weigh the child’s preferences. A judge may also disregard a child’s testimony if they suspect any of the following influences:

• If the child feels that one parent needs them more than the other and therefore wishes to remain with that parent even when the parent isn’t in a position to properly care for them
• If a child prefers the parent with more money or a more lavish lifestyle
• If a child is easily swayed by the parent who is more likely to give gifts and fun vacations
• If a child appears to have been purposely alienated from one parent by the other parent

In the end, a child’s opinion is just one of many different factors a judge considers when striving to decide custody in the best interests of the child. How able and willing each parent is to provide proper care and emotional support for the child is of primary importance in the decision. Reach out to a San Francisco child custody attorney for more clarification on these questions.