In a dispute, children may have a custody preference. Here’s what to know about children expressing custody preferences in California.
Children of all ages are able to express custody preferences unless doing so is deemed by the court to not be in the “best interest of the child”. Courts may strongly consider the custody preference of children age 14 or older. Younger children are not withheld from expressing custody preferences. However, children will never be forced to voice their custody preference to a judge.
Child Custody in California
In California, parents can obtain or share custody of a child, or be awarded visitation rights. In family law, a judge considers numerous factors in accordance with the “best interest of the child” when making the final decision on custody and visitation terms.
Judges take many factors into consideration when deciding child custody terms in court, including a child’s custody preference. California judges seek to uphold the “best interest of the child” in custody matters. A child’s participation in custody court tends to be on a case-by-case basis in California.
A child’s custody preference may hold a lot of weight if the child is 14 years of age or older. A strong custody preference may be a factor, but rarely is the sole determinant of custody terms.
Child Expressing Custody Preference in California
There is no rule or mandate requiring or prohibiting children to participate in court. Therefore, a child can express custody preference if they are fourteen years old and have the capacity to voice an intelligent argument or opinion. A child may not be permitted to address the court if the judge adequately explains why their doing so is not in the “best interest of the child.”
Related: Child Custody FAQ’s in California
FAQs about Children’s Ability to Expressing Custody Preference in California
1. How do California courts determine the best interest of a child?
A judge may consider the following factors when determining the child’s best interest:
- The health of the child,
- The safety of the child,
- The welfare of the child,
- The relationship of emotional ties between the parents and the child,
- A history of family violence by one parent or guardian,
- A history of substance abuse, and
- The child’s ties to the school, home, and community.
Related: Factors that Determine Child Custody in California
2. How is a child’s interest in addressing the court expressed in California?
The following individuals are legally obligated to the court if they are aware that a child wants to express custody preference to the court:
- A minor’s counsel
- An evaluator
- An investigator
- Child custody recommending counselor
The following people can, but are not required to, inform the court of a child’s desire to express custody preference:
- A party
- A party’s attorney
If there is an absence of an indication that a child wishes to express custody preference to the court, the judicial officer may ask whether the child wants to.
3. What happens if a court prevents a child from expressing custody preference?
When a court prevents a child from expressing custody preference due to it not being in the child’s best interest, judges must give children another opportunity to express their preference by:
- the child’s participation in child custody mediation,
- the appointment of a child custody evaluator,
- receiving information provided by child custody recommending counselor, OR
- a child interview center or their testimony in writing.
4. How do children express custody preferences in California?
When a child expresses custody preference, the judge must balance the need for the testimony to be taken in front of parents and attorneys with the need to create a safe space for the child to be open and honest. Several factors may affect the validity of a child’s expression of custody preference in court. A court may consider the following factors when evaluating a child’s testimony:
- Where the testimony is taken,
- Who will be present when the testimony is taken,
- How the child will be questioned, and
- Whether a court reporter is available when the testimony is taken.
5. Are children’s custody preferences sealed in California?
When a child testifies in court with their custody preference, their testimony is required to be on record or in the presence of the relevant parties. Additionally, the court is required to intelligibly inform the child about the limitations of confidentiality and the potential for their testimony to be on record and provided to the relevant parties.
Related: Child Custody Laws in California: What You Need to Know
6. Do California courts usually give custody to mothers over fathers?
The sex of a parent is not used to determine the “best interest of the child” when judges make the final decision of custody in California, regardless of the age or sex of the children. Courts also cannot deny a parent’s right to custody or visitation due to
- a lack of marriage between parents,
- a physical disability,
- a different lifestyle,
- a different religious belief, or
- a parent’s sexual orientation.
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