Video #77 – When Children Decide Custody

Video Transcript

Ed:  Welcome to

Christina:  This is Christina.

Ed:  This is Ed.

Christina:  Today, we are going to talk about when children get to decide which parent they want to live with according to California divorce law. Christina, is there a certain age at which children get to decide how much time they spend in each parent’s physical custody?

Ed:  Sort of. We have California Family Code section 3042, that says that if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, then the court shall consider, and give due weight to, the wishes of the child in making or modifying custody or visitation orders. Said code section goes on to state that if a child is 14 years of age or older, and wishes to address the court regarding custody or visitation, then the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests.

Christina:  So, does that mean that at age 14, kids get to decide which parent they are going to live with and how much time, if any, they will visit with the other parent?

Ed:  No. Children don’t make child custody orders. Judges decide child custody issues. Custody and visitation disputes should be decided by adults, not by children. Children who are 14 years old or older are generally entitled to let the court know what they want the judge to decide and the judge is required to give serious consideration to the wishes of that child. That does not mean that the judge has to order what the child wants. It means that the judge has to seriously consider what the child wants as part of the custody decision process.

Christina:  What about children that are younger than 14, do they have any say, under the law, when it comes to decisions about custody and visitation? 

Ed:  Age 14 is not a magic age. The key is not the child’s age, but the child’s mental capacity to reason and intelligently express why their preferences should be given due consideration by the judge. There is a Court of Appeals case confirming the decision by a judge to ignore the wishes of a 14 year old and another case confirming the decision of a judge to give great weight to the wishes of a 7 year old. If a 14 year old says he wants to live with Dad because Dad does not make him do chores or homework and lets him stay up late, then a judge is not going to give any consideration to that child’s custody preferences. If a 10 year old recites a list of thoughtful reasons why he or she prefers to live with Dad, then a judge will likely give substantial weight to that child’s wishes. How much weight should be given to a child’s wishes will be decided on a case-by-case basis.

Christina:  How do children let the court know what they want when it comes to custody and visitation? It can’t be good to have a child come into court and testify in front of their parents about which parent they want to live with.

Ed:  It is very rare for a judge to permit a child to testify in court in the presence of their parents because doing so would almost always be extremely detrimental to the child. The court provides alternative ways of allowing the child to express their wishes. Most frequently it is done through “Child Custody Recommending Counseling”. In a divorce, when either parent applies for child custody or visitation orders, a court hearing is scheduled. Before the hearing takes place, both parents will be required to participate in either Child Custody Mediation or Child Custody Recommending Counseling through a court agency called “Family Court Services”. The two parents will meet with a Family Court Services representative. If the parents can’t agree on an appropriate custody order and if a child of sufficient age is involved in the case, then the Family Court Services representative will likely meet separately with the child. The child can tell the Family Court Services representative about their preferences and the child’s preferences will be put into a report that is given to the judge. In vigorously contested cases, a court may appoint a child custody evaluator to interview the parents, the child, and other third parties before submitting a report to the judge. In some cases, the court may appoint a separate lawyer to represent the child and the child’s lawyer will let the judge know about the child’s preferences regarding custody and visitation. Sometimes, a judge will interview the child in the judge’s chambers.

Christina:  There has to be a point at which a child’s maturity essentially becomes the sole deciding factor. If you are dealing with a five year old that does not want to visit with Dad on the weekends in accordance with a judge’s custody order, the Dad can just pick up the child, put the kid in the car, and take him home. You can’t do that with a 17 year old that is six feet tall and weighs 200 pounds. It does not matter what a judge puts down in a custody order, if that 200 pound 17 year old does not want to go with Dad for the weekend, he’s not going.

Ed:  That’s true. At some point, a kid will get to be big enough and determined enough that it really does not matter what kind of custody or visitation orders the court makes. The kid is going to do what they want. You can’t force them to live with you or visit with you. The best you can do is to try to persuade them to spend time with you. What happens really depends on the personality of the child, as well as the conduct of the parents. Some kids are very compliant and if both parents are on the same page and say this is your time to be with Dad or with Mom, the child will comply. Other kids make up their own minds and refuse to comply with what a judge orders. A judge can hold a parent in contempt for not complying with custody and visitation orders. There is not much a judge can do if a teenager refuses to go along with the provisions of the court’s custody order. Sometimes, a judge will order both parents and the child to participate in counseling in order to get the child to go along with custody orders. Oftentimes this fails because the child refuses to participate in counseling.

Christina:  Sometimes, rather than spending a lot of time and money in litigation trying to modify existing child custody and visitation orders, is it better to just wait until the child is mature enough and big enough to force what their preferences are, so that custody is essentially dictated by the child, regardless of what a court orders?

Ed:  Many parents take that approach. However, I want to caution parents when it comes to attempting to coerce children into spending less time or no time with the other parent. Children need to be loved by both their mother and their father. Parents that attempt to alienate their child from the other parent almost always do catastrophic, permanent mental and emotional damage to their child.

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