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Orange County Family Law Attorney

Determining the Child’s Preference in California Custody Cases

A decision for divorce not only affects you, it also has an effect on other people that are part of your family, most importantly your children. The effect of divorce is felt most closely and severely by the children of the broken couple. Over the years, the role of the child has become more important in determining the parent that they want to live with.

The child is one of the most important assets to a parent. Contrary to popular belief though, the child continues to have a greater role in determining the parent that he or she wants to live with. This blog takes a look at the aspects of California family law with regard to determining the child’s preference.

The Preference Of The Child Aged 14 Or Older

Keeping in line with California Family Code 3042, the court must take into account the child’s preference and choice with regards to the parent they want to be with. This needs to be done for children who are of the age 14 or over, unless of course the court has reasons to believe that it is not in the child’s best interest to do so. This means that before the child is allowed to voice his opinions in front of the court, the court will decide on whether that would be in the child’s best interest or not.  California family law courts give the utmost importance to the best interest of the child or children involved in the case.

It should be clear at this point that the set bar of age 14 has been set by the legislature, since according to them a child of the age 14 years is mature in terms of emotions and has the mental capacity to take decisions of such significance.

How Can The Choice Be Made By The Child?

This is another instance in California family law courts where the courts have their utmost discretion over the way that the child can convey his/her choice. Despite this, family law judges can take the direct approach of hearing the choice straight from the child. Here are a few things that judges consider before deciding how the child’s choice can be made:

  • The location of the testimony
  • Whether the parents or attorneys should be present. In some cases, the stakeholders’ presence may make the child feel pressurized into making a decision.
  • The method of questioning, i.e. whether the lawyers of the parents or the judge will ask the child.

At this point though, it is important to understand that despite the choice of the child, it is not binding on the court of law to follow the choice and the judge can disregard it if he/she deems fit.

divorce_attorneyGerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.



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