Can Children Choose Their Custody Arrangement?
Parents have the opportunity to agree on a custody arrangement or, if they cannot agree on how to share custody, the court will decide for them. However, what about how the child feels? Does the child prefer to live in one house or with a specific parent most of the time? Does the child’s choice play a role in determining shared custody arrangements? If so, how much influence can they have?
California Family Code 3042
In the past, a court would only consider a child’s preference if they were nearing age 18. However, California custody laws have become more progressive since then, and the law allows more children to give their opinion on their custody arrangement. Specifically, California Family Code 3042 allows the following:
- If a child is old enough and has the capacity to form a well-thought-out preference regarding custody and visitation, the court should give appropriate weight to the child’s preference
- The court should keep the best interests of the child in mind when questioning a child witness
- A child who is 14 years old or older should be permitted to address the court with their custody preference unless the court can give good reasons why it would not be in the best interests of the child
- Children younger than 14 can also address the court with a preference if the court finds it is in their best interests
- In some courts, such as Orange County, the court will direct a social worker in the Family Court Services (mediation) department to interview the child and then convey the child’s preferences to the court.
It is important to note that custody determinations involve many factors, and the child’s preference can be considered as one factor, but it will not always sway the court.
A Child’s Preference Does Not Control the Court’s Decision
If a child who is 14 or older wants to give their opinion, the court must listen to them unless it would go against the child’s best interests. While 14 is a threshold set out by California law, it is recognized that children do not suddenly gain magical maturity and wisdom on their 14th birthdays. Therefore, there might be reasons why a 14-year-old’s preference might not be given as much weight as you might expect.
Parents who have young teenagers know that this can be a highly emotional time for children. It is often a time of transition in many ways, and some children begin to act out or rebel as they start high school. Their custody preference might be based on the wrong reasons, such as avoiding discipline by choosing to live with a parent who provides little or no supervision or rules. The court will need to discern whether the child’s preference is genuine or whether they have ulterior motives.
Courts regularly listen to the preferences of children younger than 14, as well, and the court will use its discretion when considering the preferences of younger children, as well. There are wrong reasons for a child’s preference, such as:
- Avoiding discipline or supervision
- Parental alienation by one parent
- Pressure from a parent
There are also positive reasons for having a custody preference, including:
- Having a stronger and closer bond with one parent
- Experiencing neglect or abuse by one parent
- One parent does not have the ability to provide proper care
Even if a child has not been coerced into choosing one home, the court might not honor their wishes. For example, a child might feel annoyed by having to go back and forth between homes and might genuinely prefer living with one parent, so the child might request the court to give that parent sole custody. The court will still honor the other parent’s rights to spend time with their child and might order visitation regardless of the child’s opinion.
How Does the Court Hear a Child’s Opinion?
If a child wants their preference to be heard, how does the court go about getting this information? Judges can assess the situation, and the law requires them to consider the following:
- Whether the child should speak in open court, a courtroom that is closed to the public, or in the judge’s chambers.
- Whether the child’s parents or their attorneys should be present when the child gives their testimony. Some children might not give an honest preference for one parent if the parents are in the room. The court reporter will be there to take the record of the testimony to be used in the judge’s decision. Some parents might be provided with listening devices so they can hear the testimony from outside the room.
- Whether the judge will be the only one to question the child or whether attorneys will have a chance to ask questions.
The court might appoint a guardian ad litem (GAL) – known as minor’s counsel in California – to represent the child during this process. Both attorneys and parents will receive the court’s report of the child’s views, and the testimony will be kept confidential in the custody case file.
Possible Undue Influence By a Parent
If your child addresses the court and states they prefer to live full-time with their other parent, you should consider the possible reasons for this preference. Unless you expected this testimony due to your circumstances, there is the possibility that your child’s other parent has exercised undue influence over your child to manipulate their testimony in an attempt to get sole custody.
Parental alienation syndrome refers to the systematic manipulation of a child to turn them against their other parent. This can involve many types of conduct, including:
- Constant criticism of the other parent
- Blaming a divorce and the breakup of the family on the other parent
- Giving the child false information, such as lying about the other parent’s misconduct or convincing the child the other parent does not love them
- Withholding access to the child and telling the child that the other parent does not want to see them
Parental alienation can result in psychological and emotional harm to a child, but it can also cause the child to be loyal to one parent and turn against the other. This can lead to skewed preferences for custody.
If you have a custody case, you should always have the help of an experienced custody lawyer in California who can stand up for your parental rights during this process.