Yes and no. In most cases, children cannot choose where they live before age 18. Nevertheless, California courts must consider and give weight to a child’s preference in child custody cases – assuming the child is old and intellectually advanced enough to express an opinion.
State law specifically permits children who are 14 and older to share their opinion in court, unless the judge believes doing so would harm them. There is no law that forbids the judge from listening to a younger child’s opinion.
The child’s preference is just one of the factors judges consider in child custody cases. Judges also consider the reasons for the child’s preference. If a child does not want to live with their mother because she is strict, for example, a judge may discount this preference, but if a child wants to live with their mother because she lives closer to their school, the judge may give weight to this preference.
Factors the Court Considers When Making Custody Decisions
In addition to the child’s preference, California courts consider several factors when deciding who a child should live with. These factors include but are not limited to:
- Each parent’s work schedule and financial situation
- The stability of each parent’s household
- The child’s relationship with each parent
- Each parent’s history of caregiving for the child
- The health and safety of each parent – and the child
- Whether either parent uses drugs and/or alcohol
- Past allegations of domestic violence or child abuse
- Where each parent lives
- Where the child goes to school
- Where the child’s friends and family members live
- The likelihood of each parent fostering a relationship with the other parent
Generally, shared custody is in the child’s best interests because it allows each parent to have a meaningful relationship with their child. This means the child may live with both parents, who will need to learn about co-parenting.
Do Children Have to Testify in Child Custody Cases?
No, judges will never force children to testify in court, and children should not testify if doing so would harm them. The judge will exercise their discretion in asking or allowing a child to testify.
Even if a child does not testify in court, however, the judge has other ways of determining their preference. For example, the judge may appoint someone to speak with the child and share their preferences in court or appoint a “guardian ad litem” to represent the child’s interests in court.
Judges may also invite children (along with attorneys and the court reporter) to testify in their chambers, so they do not have to share their preferences in front of their parents.
Ultimately, children do not have to testify in child custody cases, but if the judge wants to ask your child a question, they will find a way to do so. Your child can also volunteer information to the judge or anyone who is appointed to speak with them.
Rest assured, the court will always act in your child’s best interests.
How Can I Protect My Child in a Divorce or Custody Battle?
Divorce and child custody cases can be traumatic for your child (or children). Fortunately, you can help them cope by answering their questions in a language they understand, validating their feelings, and providing frequent reassurance.
If needed, you can also work with a counselor or family therapist to help you and your child(ren) get through the legal proceedings.
Of course, you will also need to show up for your child(ren) in court and present your side of the story with poise and clarity. TRABOLSI | LEVY | GABBARD LLP can help. Together, we have more than 100 years of legal experience, and three of our lawyers are board-certified family law attorneys.
At our firm, clients always come first. We will take the time to get to know you, listen to your concerns, and find a resolution that suits you, your family, and – most importantly – your child(ren).