If you have ever wondered whether a judge will listen to your child’s preferences about custody or visitation, you are not alone. There is a short answer: Yes, under certain circumstances. However, there is much more to the story, and there are common misconceptions about the effect of the child’s preferences.
To understand the longer answer, you have to start with California law. In 2012, the California State Legislature enacted a law to give children more of a voice in custody and visitation matters. The law applies when a child is mature enough by “age and capacity to reason so as to form an intelligent preference” about custody or visitation.
The law has a specific provision when the child at least 14 years old, specifically with regard to how the child’s preferences are obtained and presented to the court. For these older children, the court “shall consider, and give due weight to” the child’s wishes unless doing so “is not in the child’s best interest.”
For kids less than 14 years of age, the court may permit the child to express his or her wishes if it is “appropriate pursuant to the child’s best interests.”
Any time a court does not allow a child to testify as a witness, the court must allow alternative means to obtain the child’s input. For example, the court may be informed of the child’s preferences through the child’s lawyer, an evaluator, or a mediator.
There is a common misconception that a court will necessarily do as the child asks. This is not true. Even when the court does hear from the child, the court is not bound to follow the child’s preference. Rather, the court’s guiding principle is the best interest of the child. For this reason, the court can consider issues such as parent manipulation of the child and the child’s desire to avoid parental rules or discipline.
The attorneys at the Law Offices of Judy L. Burger have extensive experience in child custody and visitation matters and can advise you in detail about how courts deal with these issues. Contact us today to learn how our attorneys can help you in your case: (415) 293-8314.