Do Kids Have a Say Where…

Determining where a child will live after a divorce or separation can be a difficult decision. Not only are there various factors that must be evaluated — but in some cases, a child’s preferences should also be considered. California law allows children to have a voice in the courtroom when it comes to how a custody agreement and visitation matters are handled.

What is a Child Custody Agreement?

A child custody agreement is an arrangement entered into by both parents that determines the guidelines for custody. This type of agreement sets forth who has primary physical custody, which parent makes decisions regarding the child’s welfare, and it also establishes a visitation schedule. A custody agreement should also specify details regarding where the child will spend holidays and school vacations.

A child custody agreement is legally binding once it has been signed and entered by the court. Once the order is issued, the custody agreement can only be changed by petitioning for a modification from the court. Generally, a modification will only be granted if it is in the best interests of the child to change the existing arrangement.

How is Child Custody Determined in California?

It’s usually best for parents to work toward a child custody arrangement between themselves, rather than involve the court. However, California courts will determine custody based on the best interests of the child if the parents cannot agree on an arrangement. When custody is at issue, the judge will not give preference to one parent over another based on their gender. Rather, a court must evaluate the following factors:

  • The parent’s history of caregiving
  • The fitness of each parent
  • The stability in each parent’s home
  • The health and safety of the child
  • Any history of abuse or domestic violence
  • Either parent’s use of alcohol or drugs
  • The child’s ties to their community, home, and school
  • Where the child’s siblings live
  • The willingness of each parent to encourage the child to have a relationship with the other

Additionally, if the child is mature enough, their wishes may also be considered in determining what is in their best interests.

When is a Child’s Custody Preference Considered?

Child custody is not only an emotional issue for parents, but for the children who are involved as well. Under California Family Code § 3042(a), a California court is required to consider a child’s preference regarding custody if they are “of sufficient age and capacity . . . to form an intelligent preference as to custody or visitation.”

If a child is 14 years of age or older, the law expressly permits them to address their custody wishes with the court — unless the judge determines it would not be in their best interests. However, there is no definitive age at which a judge will hear a child’s opinion.

It’s crucial to be aware that while California law allows the court to consider a child’s opinion, it doesn’t have to render its ruling based on it. The facts of each case are very different, and a judge will use broad discretion when deciding how much weight to give to the child’s preferences.

Does a Child Have to Testify in Court Regarding Their Custody Agreement Preferences?

Whether a child testifies in court regarding their preferences for custody is determined on a case-by-case basis. A judge will not force a child to testify if they do not want to. Generally, the older and more mature a child is, the more likely they will testify before the judge. Notably, a judge can limit the questions that the attorneys are permitted to ask a child to protect them from embarrassment or harassment.

If there is a reason the child would be precluded from testifying concerning their custody preferences, the judge must allow them to express their opinion through a custody evaluator, mediator, investigator or guardian ad litem. A judge might also choose to have the child testify in chambers, outside the presence of their parents, depending on the circumstances. However, the attorneys and court reporter must still be present unless the parents consent to the judge speaking with the child alone.

Contact an Experienced Fresno Divorce and Family Law Attorney

Child custody is often one of the most contentious aspects of any divorce. If you are facing a custody dispute, it’s best to have a knowledgeable family law attorney by your side to safeguard your rights and help to ensure the best interests of your child are met. The Law Offices of Rick D. Banks is dedicated to providing clients with compassionate counsel and skilled representation for California child custody issues and a wide variety of family law matters.

The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area in their divorce and family law matters for more than 20 years. To schedule a no obligation consultation to discuss your legal issue, call (559)222-4891.