Can a child choose which parent they want to live with?

Child Custody - Can your child choose which parent to live with?

Can a child choose which parent they want to live with?

Children involved in custody battles are placed in a unique position and are impacted the most when it comes to custody orders. While a child’s preference may be taken into consideration by the court, it is not the only factor that the Court will consider when it comes to making custody orders.

In Family Code Sections 3011, 3020 and 3021, legislators recognized the importance of “making a determination of the best interests of the child in a proceeding . . .” and indicates that the Court must consider all the following:

  • The health, safety, and welfare of the child.
  • History of abuse by one parent or any other person seeking custody.
  • Nature and amount of contact with both parents.
  • The habitual or continual illegal use of controlled substances.

The Court will also give weight to a child's preference depending on the child's age, maturity, and ability to form an independent opinion. Generally, older children, particularly teenagers, may have more influence in the decision-making process since they are more deeply rooted in their school, community, and friends than say younger children. However, the court will also consider other factors such as the child's relationship with each parent, the stability of each parent's home environment, the parents' ability to provide for the child's needs, and any history of abuse or neglect. The Court will also consider the ability of each parent to encourage a positive relationship with the other parent.

What does “best interests” mean?

The Court does not provide a generic definition of what “best interests” means. However, Family Code Sections 3011, 3020 and 3021 does provide a starting point for the Courts in making custody orders. The Courts encourage joint custody orders and look to maintain frequent and positive contact with both parents. If it is not in the child’s best interests, the Court can limit custodial time with one of the parents. The Court would do so in cases involving false allegations of child abuse, failure to comply with Court Orders, and child abduction or withholding the child contrary to Court Orders.

How children communicate their preferences to the Court

In California, a child can express their preference of who they want to live with through various means, including:

  1. Child custody evaluation: The child's preference may be considered during a child custody evaluation conducted by a professional court evaluator. This option can be utilized by one of the parties, usually the parent the child wants to live with, filing a Request for Order seeking orders or a change of custody for the minor child(ren).
  2. Legal representation: In some cases, the child may be represented by an attorney who can advocate for their preferences in court. This attorney is known as a Minor’s Counsel and can be appointed by a Judge to your matter.
  3. Child Interview: The judge may interview the child in chambers to hear their preferences privately if the Judge believes that the child(ren) can do so without any extraneous pressure being placed upon the child(ren).

Child custody cases can be complex, and each case is different. If you have any questions regarding child custody matters, please contact our office for a consultation Our firm has over 30+ years of handling child custody cases and will help you throughout the entire process.

Learn more about “Best Interests of the child”

Check out more information on Family Code Sections pertaining to best interests of the child below:

Family Code Section 3011 - Children's Best Interests

Family Code Section 3020

Family Code Section 3021

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