Is A Child Allowed To Choose Which Parent They Want To Live With After A Divorce In California?

Getting divorced impacts your whole family and can be especially hard on children. The changes in living arrangements can be difficult for children to deal with, and some might feel as if their lives have been disrupted by the end of their parents’ marriage. When deciding which parent should be awarded primary residential custody, a judge will consider multiple factors to ensure the child’s best interests are protected. While a child’s preference might be one of the factors the court considers, it is not the only one and will be unlikely to be considered the most important factor. Depending on your child’s age and maturity level, the court might not consider your child’s preference at all or give it little weight.

If you’re going through a divorce and trying to determine how to arrange child custody and visitation, you should understand how much weight the court might give to your child’s preferences about with which of you they will live. Here’s some information about how courts treat children’s preferences for living with one parent versus the other from the family law attorneys at the Fontes Law Group.

Can a Child Choose Which Parent to Live With Following a Divorce?

Under Cal. Fam. Code § 3042, courts will consider the child’s preference when they are old and mature enough to give an intelligent opinion about child custody or visitation. The statute identifies children who are 14 or older as being able to address the court to state their preference unless the court determines that it would not be in their best interests. However, the decision of the court will ultimately be based on what is in the child’s best interests rather than solely on the child’s stated preference.

In many cases, courts order shared custody arrangements whenever possible because the ability of children to enjoy liberal visits with both parents is the most beneficial. However, there are some situations in which shared custody is not a good option.

While a child might have a strong opinion about which parent they want to live with, their opinion might not be accorded much weight if the court has doubts that the child’s best interests would not be served by placing them with the preferred parent. The court will assess the situation under the best interests of the child factors and work to place the child in the home of the parent who is best suited to meet the child’s needs.

Best Interests of the Child Factors

If you and your estranged spouse can’t negotiate a parenting plan that works for both of you, including decisions about custody and visitation, the court will make the decisions for you. If your child is 14 or older, the court might consider their preference and ability to form an intelligent opinion about where they want to live. The statute also states that children who are younger than 14 might also be allowed to address the court and give their preferences if the court determines that doing so is in their best interests.

The best interests of the child factors are found in Cal. Fam. Code § 3011 and include, but are not limited to, the following:

• The health, safety, and welfare of the child
• Any history of child abuse by either parent
• Any history of domestic violence by one parent against the other
• Any history of domestic violence by one parent against others
• The nature of the relationship of the child with each parent
• The amount of contact each parent has with the child
• Whether one parent has a history of habitual substance abuse
• Whether one parent is likelier to encourage the child’s relationship with the other parent
• Whether one parent has made false allegations against the other to try to gain an advantage

Family courts in California believe that it is important for both parents to actively participate in raising their children so that the children can grow to become well-adjusted adults. For that reason, courts carefully consider what is in the child’s best interests when making child custody and visitation decisions.

When Will a Child’s Choice Matter?

The court will not necessarily award custody to one parent over the other based on a child’s preference. Before your child’s preference will be considered, they must be old and mature enough to give an intelligent opinion, which the law identifies as being 14 or older. However, even if your child is 14 or older, the court will still weigh their opinion together with the best interests of the child factors when deciding child custody.

Courts recognize that many teenagers are rebellious and can be emotional, making it important for them to consider multiple factors. For example, if your child wants to live with your former spouse because they are less strict, the court won’t automatically grant their wish. Similarly, if the court finds that either you or your former spouse has pressured your child to state a preference to alienate your child from the other parent, the court might not grant the child’s wish.

Will My Child Have to Testify in Court?

If your child doesn’t want to testify in court, the judge will not force them to do so. If your child is 14 or older and wants to address the court, the judge will allow them to do so. The judge might limit the types of questions that can be asked to protect your child if they do choose to testify. If your child doesn’t want to testify about their preference, the court can appoint a child advocate or counselor to talk to them and then testify about what their preference is. If it is in your child’s best interests, the judge might talk to your child directly outside of your presence and that of your former spouse. However, unless both of you agree for the judge to speak with your child alone, your lawyer can be present to ensure the rights of your child are protected.

Get Help Today

If you are going through a divorce or already have a child custody agreement in place, you might be concerned if your child is stating a preference to change the arrangements or to live with your former partner. The attorneys at the Fontes Law Group can review your case and help you understand whether the court might consider your child’s opinion. Call us today to schedule a consultation.