FAMILY LAW ARTICLES
California law places the best interests of the children at the forefront when making custody determinations in a divorce, or in most legal matters. However, some may wonder if the child’s own desires regarding their living situation matters. The answer is yes, but with some caveats. One of the biggest factors is the age of the child.
In California, the law allows a court to consider a child’s opinion regarding custody if they are at least 14 years old. The law concedes that a 14-year-old has sufficient reasoning ability and emotional maturity to express a decision that should have weight in a custody decision. However, a judge is allowed to use their discretion when deciding whether to hear testimony from children regarding their custody. So then, a judge may consider the opinion of a child at a younger age if the judge believes their testimony to be based on some rationality and substance.
Whether 14 or not, a judge may also decide not to hear testimony from a child in a custody hearing. The judge may decide that it is not in that child’s best interest. However, if a judge decides not to hear the testimony, California law says the judge must find some other way for that child’s opinion to be heard.
In a custody decision, the children do not have absolute choice until they are 18. At the age of emancipation, they have the right to decide who they want to live with. Until that age, a judge may use their discretion on how important they believe the child’s expressed choice is to the final decision. There may be instances where a judge may decide the reason for the choice the kid makes is trivial and may give it less weight.
The court recognizes that it is in a young child’s interest to continue the bond with a parent even when the marriage is dissolved. When considering the parental bond, age again becomes an important factor. Young children of pre-school age or older develop a bond with both parents. If a child has in fact developed a bond with both parents, a custodial decision could upset that bond.
For example, there is a custody hearing for adjustment of the rights of each parent. If the bond between parent and child has been established, one of the parents will be able to make a prima facia showing of a detriment to the child. The court will have to recognize that a decision to negatively affect that bond will not be in the child’s best interest.
Note that while a judge may ask a child of a certain age their wishes about physical custody, they will rarely ask a minor child simply, “Who do you want to live with?” That would be asking them to make a very adult decision. The court is more likely to take into consideration the entirety of the situation, looking at reports from a custodial evaluator or counselor and observations of the child’s emotional and intellectual capacity. The child’s wishes do carry some weight, but like many factors in a custody decision, a judge will have discretion as to how much power to give the wishes.