If you are a parent who is considering divorce, facing divorce or in the middle of a divorce proceeding, your child and their well being is likely one of your top priorities and concerns. Many children, especially older children, will express a custody preference by telling one or both of their parents where they would prefer to live. Traditionally, courts did not take into consideration the preference of minor children when awarding custody to a parent. However, recently Family Courts have begun to shift that position and are now proactively investigating the custody preference of minor children of divorcing parents.
Recent changes to California Family Code Section 3042 require California Family Courts 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 Family Code requires courts to permit children who are at least 14 years old to address the court, if they wish, and speak about their custody and visitation preferences.
Before a California Family Court will consider a custody request made by a minor child a few key points and issues need to be present:
- If your child is under the age of 14 the Court will determine whether or not the child is both old enough and has the mental capacity to understand what they are asking the Court for and to make an informed choice regarding where they will live. This helps to ensure one parent cannot simply "coach" a child into telling the Court that the child wishes to live with that parent. There is no magic age upon which a Court will take into consideration a child's custody preference, although many children over the age of 10 (and even younger) have been found to be old enough to have the ability and maturity to make decisions and express preferences regarding custody arrangements.
- The Court will control the questioning of the child when that child is asked where they would prefer to live, and with which parent. On rare occasions the Court may chose to call the child as a witness in the formal divorce proceeding, but the Court may also interview and question the child outside of the formal proceeding. This again helps to ensure the impartiality of the Court's decision.
If you are facing divorce and your child has expressed the preference to continue to live with you, call the Law Office of Steven M. Bishop,CFLS today to help ensure your rights are respected and your child's wishes are taken into account by the Court. For nearly 40 years we have been representing your friends and neighbors in San Diego County and helping parents modify current custody and visitation orders as well as create new ones. Whatever your situation or circumstances, the Law Office of Steven M. Bishop is the experienced, compassionate and knowledgeable divorce and Family Law Specialist you need.