In a typical scenario, a married couple has joint physical and legal custody of their children.
Things may change, however, should the parents divorce, get an annulment, or become separated.
California law favors the joint rights of parents over their children, and courts will usually respect any custody arrangements that parents can amicably agree on between themselves.
If child custody is contested, however, courts may step in and make a decision based on the best interests of the child.
To what extent does the family court consider the child’s preference on whom to live with?
The Right of the Custodial Child to Address the Court
There is no law in California that requires a child to testify in a custody proceeding.
However, if the child wishes to address the family court, under California Family Code 3042(a), the court can consider and give due weight to the wishes of a child who is “of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.”
This is a limited right to address the court, and the court can refuse to do so if it determines that it is not in the child’s best interest to do so.
There is a threshold age, however, when the court is required to listen to the child if the child wishes to address the court. This is under subsection (c) of the same provision, which provides that a child 14 years of age or older, who wishes to address the court regarding custody or visitation, shall be permitted to do so.
The court can still refuse to permit the child to address the court if it determines that it is not in the child’s best interests. In this scenario, however, the court is required to state its reasons why it will not permit the child to address the court.
This does not mean that a child younger than 14 years of age may not address the court. Subsection (d) of the same provision indicates a child younger than 14 years of age is not barred from addressing the court regarding custody or visitation, as long as the court determines that it is “appropriate pursuant to the child’s best interest.”
No Legal Right to Choose, But the Courts Can Listen
There is also no law in California that allows a child to choose which parent to live with.
While a child may be allowed to address the court and express his wishes as to which parent he desires to live with, his wishes or reasons are not necessarily determinative of the custodial arrangements.
The Court is still expected to make its decision based on the best interests of the child.
This is because the volatile nature of a divorce or separation can have a tremendous effect on the child, not to mention the emotional tumult that comes with being a teenager. Courts will not automatically accept the child’s reasoning as determinative of the custody arrangements.
If a change in circumstances later on warrants revising the custody arrangements that were in place, the court will take into account the change and will again consider the opinion of the child in making changes or modifications to custody arrangements. But again, while the courts will listen to the child’s reasons, a judge is still legally required to decide based on the best interests of the child.
The Ideal Custody Arrangement is an Amicable One
As difficult as it may be for parents going through a divorce, the best way to deal with custodial arrangements is if the parents can come to a mutually satisfactory agreement regarding child custody and visitation.
Courts will support an agreement that is acceptable to both parents regarding child custody and visitation (sometimes referred to as a parenting plan), and California law favors the same. Needless to say, a mutually satisfactory agreement between the parents is also to the child’s benefit, as it avoids the adversarial proceedings that come from contested custody arrangements.