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Child Custody— California Courts Consideration in Making Custody Awards —Part 5: A Child’s Preference

This is the 5th  entry in my 7-part blog series “California Court’s Consideration in Making Custody Awards.”  As stated in Parts 1,  2, 3, and 4,  I am writing this series due to the number of emails and calls I receive in my California  Family Law Practice on a weekly basis from concerned parents regarding their custody cases. It’s my hope to help shed a little light on this issue so that my reader is better able to navigate his/her way in the California legal system regarding their custody case.  Part 5 focuses on issues relating to A Child’s Preference—from the court’s perspective. This issue, and with many others, are factors a California family-law judge will look at when making a determining on custody and visitation.

 Child’s Preference

In many instances a parent wishes for a child to speak to the court so that the child can state his/her preferences regarding who will be their primary custodial parent.  More and more California courts are considering such a request; however, before such a request will be granted, the court will need to be satisfied about a few issues. For instance, if a child is of sufficient age and capacity to form an intelligent preference regarding custody, the court must consider and give due weight to the child’s wishes in making determinations regarding custody (Family code section 3040(a).  The child’s age alone is not determinative of whether the child’s wishes must be considered and weighted.  For example, there are some 16 year olds that are very immature for their age, and there are 12 year olds that are very mature for their age.

Other factors the court will look at include the child’s sincerity, bearing and degree of maturity. (Marriage of Rosson (1986) 178 CA3d 1094, 1103, 224 CR 250, disapproved on other grounds in Marriage of Whealon (1997) 53 CA4th 132, 139, 61 CR2d 559, and overruled on other grounds in Marriage of Burgess (1996) 13 CC4th 25, 39 51 CR2d 444).  In Rosson, the wishes of children 10 and 13 years old whom the mediator found to be “very mature” were properly considered and given some weight.  In Marriage of Mehlmauer (1976) 60 CA3d 104, 110, 131 CR 325, on the other hand, the trial court did not err in finding that the wishes of a child 14 years old were not supported by mature reasoning.  What does this legal mumbo-jumbo mean?  It means that age does not automatically equate with maturity; and, as a result, judges have discretion to accept or deny such a request.

Initial custody determination versus modification proceedings on custody:   A child’s wishes are entitled to greater consideration in modification proceedings than in an initial custody determination case because in the former situation the child will have lived with the arrangement and will have had a more informed basis for his or her preference.  (Marriage of Rosson (1986) 178 CA3d 1094, 1103, 224 CR 350, disapproved on other grounds in Marriage of Whealon (1997) 53 CAa4th 132, 139, 61 CR2d 559, and overruled on other grounds in Marriage of Burgess (1996) 13 C4th 25, 39, 51 CR2d 444.)

The California court must control the exam of the child witness to protect the child’s best interest. When the child’s best interest so dictates, based on the circumstances at the time, the court may preclude calling the child as a witness and provide alternative means of obtaining information about the child’s preferences. (California Family Code section 3042(4).  See also California Evidence Code section 765(b) (control of questioning of witness under age 14).

Amendments to Family Code section 3042 require the California family court, effective January 1, 2012, to consider and give due weight to the wishes of a child of sufficient age and capacity in making an order granting or modifying visitation, as well as custody.   The amendments also require the court 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 that situation, the court must state, on the record, and provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

While it is very tempting for a parent to want their child to testify as to their preference, it is important for a parent to consider the long-term ramifications for a child to undertake such a task. For instance, the long-term remorse the child may feel for many years thereafter in “choosing” between two parents; the long-term adverse effects that may result between the child and the other parent, the degree of which the relationship will never recover. These, and other factors, are what are meant by the term “best interests of the child.”

The term “maturity” as used in the California family code means, amongst other things, the child is not easily influenced by either parent.  For example, mom promises to buy Johnny a car for his 16th birthday if he testifies in mother’s favor; or, one of the parents threatens to withhold love from the child if the child doesn’t testify in favor of the threatening parent.

As you can see, it’s not as easy as it seems to merely make a request for a child to testify. Many factors need to be considered before a California judge will agree with such a request.

In my next blog in this series, I will be discussing issues relating to sex-offender parents, e.g. registered sex offenders, persons convicted of rape, persons convicted of first-degree murder.

Ms. Garrett is a qualified and experienced California family-law attorney. Click here  if you wish to discuss your California custody matter with Ms. Garrett.

Child Custody–California Courts Consideration in Making Custody Awards–All Blogs

Part 1: “Best Interest of the Child” Standard— Child’s Health, Safety & Welfare

Part 2: “Best Interest of the Child” Standard—Part 2: Abuse & Domestic Violence 

Part 3: “Part 3: Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol”

Part 4:”Parents Gender”

Part 5: “A Child’s Preference

Part 6: Crimes of Parents: Parent is a Registered Sex Offender (or Person Convicted of Child Abuse) or Rapist”

Part 7: “Existing Restraining Orders” 

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your  matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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