For families with children, one of the toughest decisions to make during a divorce is child custody arrangements. What matters most in the outcome of these decisions is the child’s best interest. But do children have any say in who they want to live with? Many states have laws that require courts to consider the child’s preference when determining custody, or what is also known as child express preference.
Child Custody & Child Express Preference in California
In California, parents must come to agreements with each other on the matter of custody arrangements. However, if the parents cannot reach an agreement, the court will make a custody determination for them. Here are some factors that judges look into when determining which parent gets custody of the child;
- Each parent’s experience of caring for the child
- Each parent’s ability as a competent parent
- The stability in each parent’s household
- The child’s safety and health
- Whether if either parent has a history that might be unfit to raise a child (convictions, usage of drugs, abuse, or domestic violence)
- The child’s preference
- Factors relevant to the child’s welfare (Cal. Fam. Code section 3011.)
- The residence of the child’s siblings, if any
Related: 7 Factors That Decide Child Custody
Can A Child Decide Which Parent To Live With?
It may seem like it makes the most sense that a child gets to choose who they live with since after all, custody is about the child’s best interest. However, dealing with a child’s best interest doesn’t necessarily mean putting a child’s preference above other things. The determination of custody requires the court to factor in several considerations, and will usually decide on a case by case basis. For instance, judges may not give weight to preference when a case gives a reason to believe that the results of a child living with that parent will have detrimental effects on the child. Other reasons why judges may not automatically accept a child’s preference for custody may include:
- The child’s preference towards a parent might not accurately reflect the ability of that parent to be able to care for the child
- The child’s preference may be based on superficial reasons, such as a bigger house, a nicer car
- The child’s preference is heavily influenced by appealing factors such as gifts, allowances, or vacations
- The child may simply be closer to one parent than the other
What Is The Difference Between Child Express Preference vs Custody Determinations
The general rule is parents will have to come up with a child custody agreement. Whenever parents cannot agree on terms, judges will decide child custody for them. This is applied in most cases, except for cases that the child has reached a majority age of 18. In cases where the child is under the age of 18, California courts will start to recognize and give weight to a child’s preference once the child turns at least 14 years old. Under Family Code 3042, a child’s custodial preference may be stated in court once the child is “of sufficient age and ability to voice an intelligent opinion”. Like earlier mentioned, this might not apply in cases where a judge believes that doing so would put the child in danger.
Can A Child Testify in Court About Their Express Preferences?
Children of sufficient age are able to testify in court. However, this is completely up to the child whether they want to testify or not. Testifying in court can help judges limit the questions asked by family law attorneys. This protects the child from answering questions that might be sensitive or embarrassing, such as questions about harassment.
Alternatively, if a child wishes not to testify in court, judges may use other methods to get the child’s opinion. For instance, judges might appoint an investigator or mediator to speak with the child, and testify their preference for them. Additionally, attorneys who are presenting the child also have the power to testify on a child’s behalf. Typically, when a case involves younger children, the court may ask to speak with a child privately in a judge’s chambers. Parents are usually not present when a child is giving testimony because their presence can be too intimidating for the child to express their opinion.
Either way, under California Fam. Code § 3042, judges are still required to incorporate the child’s opinion in the custody case. If a child doesn’t want to give a testimony, judges must find alternative ways to accommodate a child’s expression of opinion.
Why Can’t Custody Be Entirely Up to The Child’s Preference?
Courts in a lot of states, including the ones in California, will step in and make custody determinations for parents who cannot come to agreements on arrangement terms themselves. Determination factors typically include;
- Parent’s ability to take care of the child
- Parent’s ability to provide the child with life necessities such as food, shelter, medical attention
- The stability in each parent’s household
- The child’s welfare
- Either parent’s history of domestic violence
- Whether either parent have a history of drug or alcohol abuse
- The level of cooperation and communication each parent has to encourage a relationship between the child and their other parent
- The child’s preference
When it is up to the judges’ decision, a child’s preference on custody is only one of the several factors judges must put into making a determination. Hence, this is why custody determination cannot solely rely on the child’s opinion. Children might not always know what’s best for them. Courts view that it is more important that custody arrangements reflect the child’s needs rather than what the child wants.
Contact Pride Legal
If you or a loved one has been dealing with child custody issues, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.