Child Custody, as it Pertains to California Law


While California law is lenient in some areas of the law, it is more stringent in others. For instance, when California Family Code Section 3042 went into effect in January of 2012, it became more refined – more emphasis was placed on the child’s preference in custody.

California Family Code Section 3042 lays out numerous criterions considered when child custody is considered. For example, if a child is of a “sufficient age and capacity to reason so as to form an intelligent preference,” the court must listen to the child and give “due weight” to the child’s wishes.

However, if the child is not of a “sufficient age and capacity,” then the court must “control the examination” so that the child’s best interest is protected. If the child is 14 years or older, the child must be allowed to testify, unless it is not in the child’s best interest to do so. Because each child is different, what defines a “child’s best interest” is scrutinized on a case-by-case matter; this makes the determination of what constitutes a “child’s best interest” convoluted.

With that said, although a child is asked for his/her input as it relates to child custody, the court is given broad discretion — the court will listen to the child’s preference and make decisions based on what it thinks is best for the child — the child’s best interest.

Because child custody in California is tricky, it is best to seek a licensed attorney to ensure that your child’s overall well-being is taken into consideration.

Authored by IRWIN & IRWIN.

IRWIN & IRWIN Family Law is located in Fullerton and Newport Beach, California. We provide a full suite of family law services from divorce litigation, divorce mediation, child custody issues, domestic violence restraining orders and representing minors in court. “Every situation is different, and some come with very complex financial issues. Our legal team is here to support you during a very troubling time and prepare you for court, or to at least help negotiate or mediate the issues out to establish an equitable legal resolution,” says Kelly Irwin, Senior Litigator at the firm.