If you’re divorcing and you have children, you’re facing one of the most challenging situations: which parent will your child or children live with? This is a question that you and your spouse may be able to resolve on your own, or perhaps you’ve involved the courts to rule upon the matter.
No matter how you’ve approached your child custody case, your child’s preference should be considered.
In California, if your 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.” - Family Code Section 3042
If your child wants to live with you, this must be given weight.
How a Child’s Preference Affects Custody
Let’s take a more in-depth look at this. When we’re talking about a child’s preference in a custody case, we’re talking about:
- Which parent the child would rather live with
- Whether the child can express that choice
- At what age a child’s choice should be given weight in court
Many years ago, a child’s right to choose which parent to live with after a divorce was limited. It wasn’t until the passage of Family Code Section 3042 in 1992 that a child’s rights were clearly defined.
Although Section 3042 mentions 14 as an age at which a child may address the court, this does not prohibit younger children from addressing the court regarding custody or visitation. It also does not guarantee that a child over the age of 14 can address the court. It will be in the court’s discretion to determine whether addressing the court will be in a child’s best interests.
Children are also not required to express an opinion or preference regarding custody or visitation. They only need to express their preference if they want to.
Does Your Child Have a Choice?
If you’re going through a divorce (or if you have already divorced and want to modify an existing custody or visitation order), your child’s opinion should be considered—if he or she wants to share it. It will be necessary to prove, however, that your child has the capacity to have and express a preference. Whether this is expressed by age and other means, that will be handled on a case by case basis.
Involving an Attorney
Like all family law matters, custody cases are complex and emotionally charged. At the Law Offices of H. William Edgar, we understand that you have a lot on your mind and need all the support and guidance you can get. If you have questions about how to help your child express his or her opinion in your divorce or custody case, give us a call. We’ll be happy to talk to you about what’s happening and offer our insight on the steps you can take to protect your child.
Call (888) 251-9618 today to talk to our leading Southern California divorce and custody attorneys.