Does a Child’s Preference Affect Custody Decisions in California?


Going through a divorce is never easy, and it becomes even more challenging when there are children involved. One of the many questions that parents often have is whether their child’s preference will be considered by the court in determining child custody. In California, the answer is yes, but there are several factors that the court will consider. The Orange County child custody attorneys at Irwin & Irwin are here to help shed some light on the subject.

Can a Child Decide Which Parent to Live With?

California law allows a child to express their preference as to which parent they would like to live with. However, the ultimate decision will always be made by the court. Even if a child expresses a strong preference to live with one parent, the court may decide otherwise if it is in the best interest of the child.

What age Does a Child Need to Be to Choose Which Parent to Live With?

The California Family Code Section 3042 mandates that if a child is of sufficient age and capacity 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. Moreover, the court may, if appropriate, take into consideration the preference of a child of any age, but it is mandatory for the court to consider the preference of a child who is 14 years of age or older unless it is deemed not in the child’s best interest to do so.

When Will the Court Consider a Child’s Preference?

The court will consider the child’s preference at any time during the divorce proceedings. It is important to understand that the preference of the child is only one of many factors that the court will consider when making a custody decision. Other factors may include the mental and physical health of the parents, the ability of each parent to care for the child, the child’s relationship with each parent, and any history of domestic violence or substance abuse.

How Much Importance Does the Family Court Place on a Child’s Preference in Custody Cases?

The Family Court in California considers a child’s preference as one of several factors when determining custody arrangements. It is important to understand that while a child’s preference is considered, it is not the deciding factor. The court will evaluate the child’s preference along with other elements such as the child’s health, safety, and welfare, any history of abuse by one parent, and the nature and amount of contact with both parents.

The court will assess the child’s maturity and ability to express a well-reasoned preference. Generally, the older and more mature a child is, the more importance the court will place on their preference. However, the final decision will always be based on what the court believes to be in the best interest of the child.

Remember, each case is unique and the court’s decision will depend on the specific circumstances of your situation. It is always advisable to seek legal guidance from a law firm like Irwin & Irwin to understand how the court may interpret and apply the factors in your case.

A Child’s Opinion is Only One Factor Considered by Family Courts in Custody Decisions

While the child’s preference is important, it is only one of many factors that the court will consider when making a custody decision. The court’s primary concern is always the best interest of the child. Other factors that the court may consider include the ability of each parent to provide a stable and loving environment, the child’s relationship with siblings and other family members, and the child’s adjustment to school and community.

Why Children Can’t Decide Custody

Ultimately, the court will make the final decision regarding custody because children are not legally capable of making such decisions. While their preference is considered, it is up to the judge to evaluate all the factors and make a decision that is in the best interest of the child.

How to Prepare Your Child

Preparing your child for a court hearing or mediation where they might be asked about their living preferences is a delicate task that needs to be approached with sensitivity and care. Here are some guidelines to help you prepare your child for this important conversation:

  • Explain the Situation: Depending on your child’s age and maturity, explain the situation in simple terms. Make sure they understand that both parents love them, and the court or mediator is trying to determine the best living arrangement for them.
  • Encourage Honesty: Make sure your child knows it is important to express their true feelings and preferences. Emphasize that their opinion matters and it is okay to share their feelings.
  • Avoid Coaching: It is important to allow your child to express their feelings freely. Avoid instructing them on what to say or attempting to influence their preference.
  • Stay Neutral: Encourage your child to share their thoughts and feelings without showing any negative emotions or reactions. Reassure them that it is okay to share their true feelings and that you will not be upset by their honesty.
  • Discuss the Different Scenarios: Prepare your child by discussing possible living arrangements and what each scenario might entail.
  • Reassure Your Child: Make sure your child knows that no matter what the outcome, both parents will continue to love and support them.
  • Seek Professional Guidance: If you feel that your child is struggling with the situation, consider seeking the help of a mental health professional. They can provide guidance on how to best support your child during this challenging time.

Remember, while your child’s preference is an important factor in custody cases, it is only one of several that the court will consider. It is always recommended to seek legal guidance from a law firm like Irwin & Irwin to understand the full scope of factors that may affect the court’s decision and to prepare adequately for the proceedings.

How an Attorney Can Help

Navigating the complexities of a child custody case is challenging, especially when considering the importance of your child’s preferences. Having an experienced attorney by your side is essential to guide you through the process and represent your interests most effectively.

  • Guidance on Legal Procedures: We will provide advice on the legal procedures and what you can expect throughout the process. We will guide you on how to properly document your case, present evidence, and prepare your child, if necessary.
  • Representation in Court: We will represent you in court, present your case in the most favorable light, and advocate for both your interests and the best interests of your child.
  • Negotiation and Mediation: Our experienced attorneys can help negotiate an amicable agreement with the other parent and represent you during mediation sessions, if necessary.
  • Understanding the Law: California law has specific guidelines regarding child custody and the consideration of a child’s preference. We can help you understand these guidelines and how they apply to your case.
  • Preparing for the Case: We will help prepare you and your child for the case, providing advice on how to communicate effectively and present your case in the best possible light.

At Irwin & Irwin, we have a wealth of experience in handling child custody cases in California and can provide the professional and compassionate support you need during this challenging time. If you are going through a child custody case and are wondering how your child’s preference may affect the outcome, we encourage you to contact us to schedule a consultation.