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Determining A Child’s Preference In California Custody Cases

While deciding upon the final verdict in child custody related divorce cases, the court of law has the obligation to keep the best interests of the child in mind. The history of child custody settlement methods has been quite prolific and frequently changing in the state of California. Quite a few years back, the concept of acknowledging the child’s preference in deciding upon his custody and visitation related settlement was shunned as an unnecessary ordeal. At that time, the preference of a child was considered meekly only if he had reached his teenage years.

However, with the recent transformation of the family law in California, the statutes have become more progressive and accepting of the child’s right in voicing his opinion regarding his custody and visitation related preferences.

Understanding California Family Code section 3042 

California Family Code section states a few guidelines for the court of law while dealing with child custody related cases.

  • A child who is of adequate age and reasoning capacity to make a sensible decision regarding his custody and visitation preferences, will be given due consideration by the court of law in deciding upon the final verdict.
  • Apart from the statutes of the Evidence code section 765 subdivision b, the court has the obligation to limit the cross examination of a child witness in order to protect his best interests.
  • A child who is 14 years of age or older, has the right to state his or her preferences regarding his custody and visitation, unless the court identifies it as a threat to his best interests and well being. In such cases, the court has the obligation of stating the specific reasons for avoiding the same.

Preference of children of age 14 and above 

As per the aforementioned California Family Code 3042, a child who is 14 years of age or older has the right to state their preference regarding custody and visitation to the court regarding his or her custody and visitation related orders. The court has the duty to listen to his wishes and determine whether taking a decision in his favor will ensure his best interests or not. The specific age limit has been identified by the Californian court of law as a time when a child has developed sound emotional maturity and a sensible rationale, and is capable of articulating the reasons behind his preferred choices.

However, the child’s preference is not considered as the ultimate decider of the final verdict. It is left to the court’s discretion to decide the settlement as per its own evaluation of the specific circumstances.

Getting divorced in California and dealing with custody issues can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

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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