How Much Does a Child’s Preference Impact Custody?

How Much Does a Child’s Preference Impact Custody?


One of the most difficult challenges of going through a divorce is determining the details regarding child custody. Even in situations when the divorce itself is amicable, you and your spouse are likely to have differing opinions regarding how best to proceed with childcare in the aftermath of your separation. Everything from agreeing upon the primary residence and custody schedules to more complex issues like schooling, religion, extracurricular activities, and more can be areas of disagreement.

Because of the pressure involved in making such decisions, it is not uncommon for the situation to become contentious or even openly hostile. And while the parents continue to argue over what is best, their children might want to have a say as well. Though they are often too young to understand the situation fully, children have their own opinions and preferences, and they can choose to voice such thoughts during the proceedings. In such a situation, you might be wondering whether those thoughts will be considered by the courts when determining how best to settle the issue of custody.

If Parents Can’t Agree, the Court Can Decide

If mediation amongst the parents is not possible, litigation may be necessary, calling upon the courts to sort out what custody arrangement would be best. When it’s up to a judge to determine child custody, several other factors are more commonly considered beyond the child’s preference. Ultimately the priority of California courts is to make a decision that upholds the child’s best interest, regardless of what each of the parents believes to be the more appropriate choice. While this does include ensuring that neither parent is abusive or addicted to drugs or alcohol, it also means considering things like what arrangement will offer the child the most stability, which parent is most likely to encourage a positive relationship with the other parent, and each parent’s past performance as a caregiver. That being said, family law in California also includes child preference as a potential factor, along with any other factors that could impact the child’s welfare.

Should You Consider a Child’s Preference?

A child’s preference can be indicative of several things. If you have been the primary caregiver for your child, or if they have consistently witnessed unfavorable behavior from your spouse, they may have formed a stronger attachment to you. However, this is not always the case, and preferences are not an automatic indicator of the more stable parent. For instance, if your partner is afraid of not getting their desired result in the divorce, they may resort to spreading lies or speaking badly about you to your child. Children can be very impressionable, and your child may develop an aversion to being housed with you as a result. Additionally, your child may not comprehend what’s at stake and voice a preference based on superficial things, such as which parent was the last to let them eat candy.

Because this information can be both incredibly telling or entirely irrelevant depending on the child and the circumstance, there are several caveats to considering a child’s preference in custody matters. For starters, all children are welcome to speak; however, the law specifically affords the right to state a custodial preference to those over the age of 14, who are assumed to have a better understanding of the situation and the stakes involved. Then there are distinctions made for the reasoning behind said preference. The courts will ask children to provide context for their opinions when such context is available. Reasons such as “I don’t want to move away from my grandparents” would be given more weight than “Mom always gives me extra ice cream,” or “I don’t want to make Daddy sad.”


Work With Experienced Lawyers When Considering Preferences

If your child indicates a preference that you believe may be against their own best interests or the result of manipulation from your partner, you must remain calm and work with your legal team to strengthen your claims. At Bickford Blado & Botros, we have extensive experience handling all sorts of complex cases and can provide the courts with the necessary context to paint a better picture. Keep in mind that even in situations where there are valid reasons for a preference, the court may decide that a different arrangement would be better for the child. For instance, the child may show strong opposition to moving away to a new city and school; however, such a change might provide them access to a safer neighborhood and a much better education. In this example, ultimately, the long-term benefits far outweigh the short-term costs.

While children have the right to make their voices heard in California, this does not necessarily mean they must testify in court. Testifying in front of a judge can be a stressful experience, especially for a young child. On occasion, the court might rule that testifying is not in their best interest. However, if that is the case, they must provide the child with an alternate avenue to submit their opinions. For example, they might arrange for a custody evaluator or mediator to speak with the child and then relay all of the child’s thoughts to the court on their behalf. In some particularly volatile cases, the child might be asked to testify directly to the judge, away from their parents, in an attempt to avoid any undue influence.

After 18, Children Can Make Own Decisions

Child custody cases can involve children of different ages and levels of independent thought; however, once a child turns 18, they are no longer perceived as a minor in California. This includes children who are still attending high school, living at home, and depending upon their parents. Once they reach their 18th birthday, they are considered emancipated, and as such, children who are 18 or older can decide for themselves where they would like to live and what sort of arrangement they would be most comfortable with.

If you are starting divorce proceedings, you must work with a skilled legal team every step of the way. Your attorney can ensure that you have ample evidence supporting your position regardless of whether your child has voiced a strong preference while ensuring that you do not accidentally engage in any behavior that could be considered manipulation. When you’re ready to get started, contact us today via our website, or give us a call at 858-793-8884.



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