I Want to Live with This Parent Not That One

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.

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