When it comes to custody, a child might have a say in where they want to go, depending on their age and maturity level. If you are involved in a custody battle, it will be important to know how a court might factor in a child’s preference in addition to their best interests when deciding a custody order. In today’s blog, we will address the weight of a child’s preference in custody proceedings, as well as the process for a child’s testifying in court.
Child’s Best Interests
In all custody decisions, the court makes a decision based on the child’s best interest. To determine a child’s best interests, California law looks at two guiding factors:
- the health, safety, and welfare of children; and
- frequent and continuing contact with both parents, which is generally beneficial for children.
In addition to the above factors, though, the law does require courts to consider the wishes of a child who is mature enough to make an intelligent choice regarding custody. California does not specify an age, but the older and more mature a child is, the more likely a judge might be to give substantial weight to the child’s opinion when deciding custody.
How Does a Child’s Preference Factor In?
California courts must consider and give weight to a child’s preference when the child is of sufficient ability to voice an intelligent opinion on custody or visitation. In most cases, if a child is at least 14 years old, the law allows the child to state a custodial preference, unless the judge believes doing so would be detrimental.
Note that while the law permits a child to express their opinion, the judge does not have to follow the child’s preference. Legally speaking, children can’t choose where to live until they are 18 years old. Each case does vary, though, and the judge will decide how much weight to give the child’s preference using broad discretion. Courts will generally give more substantial weight to older children’s opinions than those of younger children.
When examining a child’s preference, the judge will also consider the child’s reasons for preferring one parent over the other. For instance, if a child says that they want to live with their father because he is less strict than their mother, the court might decide not to give that opinion much weight. On the other hand, though, if a child states that they want to live with one parent because that parent lives closer to their friends and the school they attended their entire life, the judge might weigh this preference substantially more.
Do Children Testify in Family Court?
It is not a requirement in California for a child to testify in court, though, and it is up to the judge to decide this on a case-by-case basis. Note that the court is more likely to allow a child to testify in court if they are older or particularly mature. However, the judge will not force a child to testify in court if they do not wish to do so.
When a child testifies in court, the judge can limit the questions that attorneys ask to protect the child from harassment or embarrassment. As mentioned earlier, if the child does not testify about custodial preference, the judge can use other methods to get the child’s input, like appointing an evaluator, investigator, or mediator to speak with the child. The representative will then testify in court for the child about their preference. The court may also ask a guardian ad litem (attorney representing the child) to testify about the child’s opinion on custody.
Alternatively, the court might choose to have the child testify in chambers outside of the presence of their parents. This is often the case with younger children or when the child is likely to testify about sensitive topics. When a child testifies in a judge’s chambers, the court reporter and attorneys must still be present with them unless the parents agree that the judge can speak with the child alone.
Change of Custody
The courts believe stability is best for children when it comes to custody, so custody modifications are not frequently granted. However, the courts also recognize that as children grow up, their circumstances may change enough to warrant a new custody order. In any case, it is always best for the interested parent to have a conversation with the other parent regarding a potential change in their current custody arrangement.
To pursue a modified order, the requesting parent must file a formal motion with the court that explains why a modification is in the child’s best interest. They will also need to provide a compelling reason for their request. Courts are hesitant to uproot a child from a successful custody arrangement that appears to be working, so it is the requesting parent’s responsibility to explain to the court what change in circumstances supports a change to custody since the last order.
If the court agrees that it would benefit the child to change the custody order, the judge will evaluate the best interest factors and the child’s opinion if they are at least 14 years old. If the child is younger, the court will operate under its own discretion.
Note that if both parents can agree on the new terms, the court will approve the agreement and create a new custody order. If both parents can’t agree, however, the court will need to evaluate their case on its own and determine whether a modification is necessary.
Questions? Contact Claery & Hammond, LLP!
The question of custody in divorce can be tough to navigate, especially with older children who might have a preference for where they would like to stay. If you are currently involved in a custody battle or seek to modify an existing order, contact an experienced attorney immediately. It is important to understand the weight of your child’s preference, and how the court might factor it into a new or modified custody order.
Contact Claery & Hammond, LLP for more information. Schedule your free consultation today!
