There are instances when a child’s preference to live with one parent can affect a child custody case. When the child reaches a certain age, he or she can express a preference as to which parent to live with and the court will give weight to that preference in making a custody order.
As a result of Family Code 3042 and its companion in California Rules of Court 5.250, children are now able to express their custody preference. California Family Code 3042, subsections (a) states:
“(a) 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.”
Cal. Fam. Code 3042(a)
This code allows children to have a voice much stronger than in the past. A family law attorney can further discuss the other sections of this code and how it affects your child’s ability to voice and choose their preference when it comes to custody.
The Testimony Process
The parent who seeks custody will need to file a formal request for order with the court stating that the child has expressed a preference to live with or have a preference to spend more time with that parent.
Family courts in California must listen to a child who is 14 years old. The California legislature believes that a child this age has enough emotional maturity and capacity to express and analyze their reasons for a preference. The exception is when the court determines that it is not in the child’s best interest or if a child is under 14, but that is determined case by case. In order to reduce anxiety in the child when they state their preference, a family law judge may hear from a child directly in chambers or in open court.
The Relevancy of the Child’s Testimony
Although the child’s testimony carries weight, it does not mean that their preference will be how the judge orders custody. A family law judge will listen to a child’s preference but may not follow it if the court believes the choice is not sincere for various reasons. A judge will need to evaluate if the testimony was coerced or given to manipulate one parent against the other, among other factors. The family court will also need to consider the living arrangements between the parents and why it would be in the child’s best interest to live with one parent over the other.
It is also important to be a vigilant parent and not allow your child’s preference to be heard without knowing the real reasons for that preference in custody. It is important that you understand that your child’s preference is legitimate and not due to emotional abuse, pressure or alienation. When you are attempting to get custody based on your child’s testimony, you will need the assistance of an experienced child custody lawyer. With proper legal advice, you can properly present your child’s testimony or dispute it if you suspect it is not your child’s desire to live with the other parent.
