Child’s Personal Preference of Custody Cases

My child mentioned their preference to be under my custody after the divorce is finalized. Will the court take this into consideration?

Before 2012, children involved in an ongoing divorce case could testify in court, but it wasn’t a common practice. This changed when a new law went into effect which now allows children to state their preference during a custody case. A child’s preference including who the child chooses to live with, how the child can state that preference, and when (at what age) the child can make the choice has evolved over the past decades. There was a time in California family courts that a child’s choice was somewhat of a nuisance to family law judges, and not strongly considered in custody and visitation cases until the child reached their later teenage years.

The court uses 14 years as a benchmark age of a child who presumably has the right to testify on their preference, unless the court decides that it isn’t in the child’s best interest to do so. Children under age 14 are given the ability to testify if the court decides it is in their best interest to do so.

The law states that when a child is of sufficient age and capacity to reason and form an intelligent preference as to custody (or visitation), the court shall consider and give consideration to the wishes of the child when creating or modifying a custody or visitation order. More specifically:

• The court shall control the testifying examination of a child witness so as to protect their best interests.
• If the court determines that a child 14 or older cannot testify, the reasons for that conclusion must be stated on the record.
• Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.

The age of 14 as the defining year isn’t due to some special significance. It’s simply used because the California legislature believes that at age 14, a child has reached a sufficient stage of emotional maturity and mental capacity to reason and formulate appropriate reasons to conclude a preference. This may come as a surprise because this age comes at a stage where children tend to experience emotional chaos as they seek to find themselves as a young adult. It’s not unusual for a child at this point to exhibit rebellious behavior and use this preference option as a means to escape discipline from one parent.

With that in mind, It should not be assumed that a child’s preference, regardless of the age, will take top priority over all other factors. Family law judges have the discretion to consider a child’s preference but not necessarily include every aspect of it when arriving at a final order. We’ve had situations where a child has specifically expressed a preference to live with their mother, but after digging into the matter, we discovered this stated preference was the result of pressure and attempted alienation by the mother. All of these things can factor into a child’s stated preference, so vigilance and a full review of the foundation and reasoning behind the preference are very important. In that regard, the assistance of a family law attorney can be very helpful.

Even if a stated preference is legitimate and sincere, the court is not required to cut off all visitation, for example, from one parent, if the child requests it from the court. If a child states a preference to be in the sole custody of one parent and not be required to see the other, the court has the ability to still order visitation with the other parent and even implement orders such as counseling and other measures to repair or restore the relationship between the child and the parent in question.

If you’re a parent who has a child with a strong preference for custody or visitation (regardless of who their preference is with), it’s best to seek out the guidance of a knowledgeable family law attorney that has experience with child custody and visitation. If your case is in Contra Costa, Solano, or Alameda county, we’d be happy to assist you. Feel free to contact us for a free consultation.