In California, when couples divorce with minor children, child custody
is always an issue. Where should the children live? Should the children
live half the time with one parent and then half the time with the other
parent? Should they live with one parent, but the other parent having
generous visitation rights? What about the children themselves? Don’t
they get a vote in where they live, after all, they’re the ones
having to move around?
The family code states that a court shall award custody to both parents
or to either parents. However, when making the decision for one parent,
the court shall consider (among other things) which parent is more likely
to allow the other parent frequent and continuing contact with the other
parent. The law also specifically states that a parent’s gender
shall not be used to determine custody.
Section 3042 does give children a voice in where to live:
The child must be “of sufficient age and capacity to reason so as
to form an intelligent preference as to custody or visitation, the court
shall consider, and give due weight to, the wishes of the child in making
an order granting or modifying custody or visitation.”
Or if the child is age 14 or older, “…and wishes to address
the court regarding custody or visitation, the child shall be permitted
to do so, unless the court determines that doing so is not in the child's
best interests. In that case, the court shall state its reasons for that
finding on the record.”
The law is also very clear that the child does not
have to state where he or she wants to live. Further, the court will take into
account how the child will address the court. Usually, the judge takes
the child back to judge’s chambers (the judge’s office) and
asks the child questions where he or she wants to live and why. The judge
will also often ask questions about the other relationships in each household,
such as parent and step parent (or significant other), and/or relationships
with step children.
It is up to the court to decide how much value to give a child’s
request, but the child has been given a voice in the matter.
And for a bonus, effective in January of 2012, children are now able to
give their opinions about visitations too! The same family code section
was amended to include visitation issues along with custody issues, and
the same laws apply.
From a child’s point of view, this is a big deal. Visitation is very
important and children want to be with both of their parents, but they
also want time to do what they want to do. Whether it be visit friends
or after school activities, their time is important to them.