If you’re divorcing and you have children, then you’re facing a challenging situation: 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; but how old does a child have to be to decide which parent they want to live with?
Ultimately, it will be at the court’s discretion to determine whether or not addressing the court will be in a child’s best interests. California Family Code Section 3042 states that 14 years is the age at which a child may address the court; however, this does not prohibit younger children from addressing the court regarding custody or visitation. Also, Section 3042 also does not guarantee that a child over the age of 14 can address the court.
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.
According to California Family Code Section 3042, 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.” So, if your child wants to live with you, then this must be given weight.
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:
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 to decide which parent to live with were clearly defined.
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. Only then will the court allow them to help decide which parent to live with. Whether this is expressed by age and other means, that will be handled on a case by case basis.
Like all family law matters, custody cases are complex and emotionally charged. At the Edgar & Dow, 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 our family lawyers 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 attorneys in divorce and custody cases.
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