Does a Child’s Preference Carry Weight in Custody Determinations?
A common trope in divorce and child custody matters is that the adults make all of the decisions with little regard for the child’s wishes and that this arrangement usually results in misery for the child. This trope has been reinforced in popular culture by divorce-themed films such as Mrs. Doubtfire and Kramer vs. Kramer. While the primary responsibility for doing what is in the best interests of the child lies with parents and the courts (i.e., “the adults”), a child’s wishes are not completely disregarded in California. In some cases, courts will take a child’s preferences into consideration when making custody determinations, as an attorney at our Stockton child custody law firm explains.
When Courts Consider the Preferences of the Child
Traditionally, the child’s preferences in child custody determinations were given little to no weight unless the child was in his or her advanced teenage years. That has changed over the years as California law has evolved. California Family Code 3042 governs this issue and outlines the circumstances under which a court may consider a child’s preferences when granting custody. It reads, in relevant part:
(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.
(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interest.
In other words, the court is required to allow children aged 14 or older to make a statement regarding their wishes, unless the court determines that doing so would not be in the child’s best interest. If the child is younger than age 14, the court may allow the child to make a statement, but only if the child is old enough to have an informed opinion. Generally, the older the child is, the more likely it is that the court will consider his or her wishes.
A Child’s Preference Is Not the Final World
Section 3042 orders courts to give “due weight” to the child’s wishes, meaning that this factor alone is not dispositive in custody determinations. The court must still consider the child’s preference in light of the other factors it must consider when determining the best interests of the child. As such, the court will consider — but not base its determination on — the child’s preferences.
Contact an Attorney at Our Stockton Child Custody Law Firm
Child custody battles can be difficult and take an extreme toll on both the parents and the children. For help with a child custody matter, please contact an attorney at the Stockton child custody law firm of McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.