Can My Child Decide Who He/She Wants to Live With?

Child Custody is one of the most important issues to be decide in a martial dissolution matters.  Indeed, parents going through divorce may end up spending tens of thousands of dollars and countless sleepless nights fighting over child custody and visitation.  The issue of child custody has two components: (1) legal custody; and (2) physical custody.  Legal custody is normally joint, because legal custody provides the parents the right to make major decisions regarding the child’s health and welfare, which they should do together.  Legal custody also provides the parent with access to school and medical information.  As such, unless there is a compelling reason for there not to be joint legal custody, attorneys normally advise their clients to agree to, and judges normally order, joint custody.

Physical custody is a little trickier as it sets out the schedule for when each parent has custodial time.  Family Code §3040 et seq. set out the guideline for how the court should make decisions regarding physical custody. There are no preferences in California law based on the sex of the parent.  This means that mothers do not have an automatic advantage in custody decisions.   Visitation rights are controlled by Family Code §3100 et seq.  While the court can take many factors into consideration, the overriding factor is what is in the best interest of the child.  Consequently, many parents ask, “what about what the child wants?”

The answer to that question lies in Family Code §3042.  Until 2010, with the passage of AB 1050, the old rule was that the court could consider the child’s preference if the child was “of sufficient age and capacity to reason so as to form an intelligent preference as to custody.”  After the section was amended in 2010, which took effect on January 1, 2012, the Court is now required to permit a child who is 14 years of age or older to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interest, in which case, the court would have to make such a finding on the record.  Furthermore, the amendment would require the court to provide an alternative means of obtaining the child’s input to receive information about the child’s preference.

Pursuant to Family Code §3042(b), the court shall control the examination of the child in order to protect the best interests of the child.  This may be implemented by having an in chamber (Judge’s office) meeting with the child, instead of testimony on the witness stand, where the child would have to face both parents when testifying.  The court can also order a custody evaluation so that a qualified family therapist may question the child, instead of a court setting.  Another option is to appoint minor’s counsel so that the child has his/her own attorney with whom the child can discuss preferences and avoid having to appear in court altogether.

Family Code §3042 does not prevent a child under 14 from addressing the court about his/her preference.  It only makes it mandatory for children over the age of 14 to be heard by the judge in some manner. Conversely, nothing in this section requires a child to have to express a preference.

It is important to note that even when a child is allowed to express his/her preference to the court, that preference is one factor the court will consider in making a decision.  For example, if the court realizes that the child’s preference to live with one parent is based on his/her preference to live in an unsupervised, discipline-free home where there are no rules, then the overriding factor of “best interest of the child” takes over and the child’s preference has no bearing.  Furthermore, parents should be very careful not to manipulate their child to obtain the desired result.  If the court orders a custody evaluation or minor’s counsel, the truth will come out that the child feels guilty or was manipulated into saying things he/she does not mean.  In that case, the manipulating parent may be found to have committed parent alienation, which will have a negative impact on the court’s ruling on custody schedule.

The advice I always give to my clients going through a divorce is that when you are making any decision regarding your child, make the decision based on what is in the child’s best interest.  Brainwashing or manipulating your child to hate the other parent, or making them feel guilty if they enjoy time with the other parent is not good for the child.  Using the child to get one over on the other party is not good for the child.  Keeping the child away from the parent, unless that parent is a horrible person, is not good for the child.  Children need both of their parents.  If you act in the best interest of the child, both you and your child will get through the divorce process better.


© 2017 Marina Manoukian