The new section in the California Family Code gives children more autonomy about their living situation, which could make custody cases more difficult, yet more fair to the child. Here is everything you need to know about California Family Code Section 3042.
California Family Code Section 3042 encourages judges to listen to the preferences of children on where they want to live. While this section is not law, it puts pressure on judges to begin giving children a voice in their living situations. Once a child turns 14, their preferences must be taken more seriously and should be taken into higher consideration, however, a child’s preference should always be considered at any age. A child does not need to be called to the witness stand to give this information, and people involved in the case can tell the Trial Courts that the child has a wish for which parent they want to live with.
Related: California’s Child Custody Process
California Family Code Section 3042
California Family Code Section 3042 was enacted on January 1st, 2012. While it didn’t change California law, it encourages family law judges to start listening to children who are old enough to have a preference to where they live. The section states that when a child is of “sufficient age and capacity” to reason and form an “intelligent preference” for their custody and visitation, the court must give “due weight” to the child’s wishes. If the child is age 14 or older, then the judge must listen to the child’s wishes unless the judge thinks it is against the child’s best interest to do so. With a younger child, the court can still listen to see if it is in the child’s best interests.
While a judge’s actions may differ depending on the child’s age, the judge must hear out the child no matter how old they are. The main difference is that once the child turns 14, the judge has to take the child’s preference more seriously and do their best to make that preference a reality.
It is important to note that the Family Code does not mandate the judge to listen to the child’s preferences. Section 3042 only encourages the judge to listen to the child. Most aspects of California family law result in an evaluation of the child’s best interest.
How These Preferences Must Be Given
Section 3042 currently permits Trial Courts to have alternate methods for learning about the child’s preferences if it prevents calling them as witness. Section 3042(e) now requires the provision of such an alternative. Further subsections of section 3042 add that someone, such as a child’s counselor, an investigator, an evaluator, or a mediator, must tell the judge if the child wants to address the Trial Court. The parents or attorney may also give the judge that information. The Trial Court must also inquire to the child on its own if no one has put in a request for a child to state their preferences. The child is also not required to present their wishes on the topic, they are only encouraged.
Related: 7 Questions Asked At a Child Custody Hearing
FAQs About California Family Code Section 3042
At what age can a child choose to stop seeing their biological parent?
The court can modify a custody order to stop a child from seeing a biological parent if the child is at least 12 years of age, expresses a preference for which parent they would like to live with and why, and the decision to stop seeing one of their parents is in the best interest of the said child.
Related: What to Do if Child Refuses Visitation With the Other Parent
How do you prove the best interest of a child?
A parent can demonstrate that living with them is in the best interest of their child by enrolling them in school, being involved in their education and upbringing, having their child participate in extracurricular activities, and having made parenting decisions that demonstrate an interest in the nurturing of said child.
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If you or a loved one have any more questions on California Family Code Section 3042, contact us. Get your free consultation with one of our experienced Child Custody Attorneys today!