In every child custody case that’s brought to court, the judge is obliged to consider a wide range of factors before deciding which parent a child should live with. Judges have some discretion, but certain legal constraints also bind them. Above all, the guiding principle is that any decisions must be made in the child’s best interests.
Babies and toddlers are too young to have a say in what happens to them, but what about older children? At what age do the courts start listening to their wishes, especially about where they want to live? How much weight do their comments carry? What other important factors must be taken into consideration?
As with so many aspects of the divorce process, the answer to all those questions is: “it depends.” Every case is different, which is why we’ve put together this comprehensive guide to shed light on how the system works. We’ll tell you when the courts start listening to the wishes of children, outline the legal process, and summarize all the different factors a judge must consider around custody.
In California, parents are encouraged to agree on child custody arrangements between themselves without going to court. This approach is generally better for all concerned because it’s faster, costs less, and reduces drama and emotion.
When parents can’t agree, responsibility for the decision on custody passes to a judge. This is a significant step because it means the two parents no longer have direct control over what happens.
The presiding judge rules on three key areas: child support (maintenance), child custody, and visitation rights. Child custody is further broken down into two parts: physical custody (which parent the child lives with) and legal custody (who gets a say in how the child is raised). Physical and legal custody can be a mixture of joint or sole.
When the courts assign custody, they start from the premise that both parents should have equal access and that any decision must be made in the child’s best interests. After that, they consider many factors, including each parent’s bond with the child, child care track record, welfare issues, parental suitability, ability to co-parent, the proximity of schools, siblings, and other family members. Plus, where appropriate, the child’s stated preference.
California law states that a child aged 14 years or older has the right to express which parent they’d like to live with. A younger child may also be allowed to state a preference, although in both cases, the courts may decide that doing so isn’t in the child’s best interests.
Note that a judge won’t automatically accept the child’s expressed preference. Only when they reach 18 can your children make their own decisions regarding their living situation.
Sometimes a judge may rule that it’s not appropriate for a child to testify in court. However, if a child wishes to express their opinion, they can do so via a third party such as a mediator or a custody evaluator.
That said, appearing in a court of law can be an intimidating experience for an adult, let alone a minor, so due consideration should always be given before any child testifies.
In general, courts will give weight to the wishes of children before handing down verdicts. However, the judge may overrule the child’s preference, as they’re wise to the tactics of teenagers. Johnny might prefer to live with Dad because he lets him stay up late, eat junk food, and skip school, whereas Mom’s much stricter. Ultimately, the judge may rule that Johnny’s best interests are served by him getting enough sleep, having a healthy diet, and attending school.
Judges must also interpret the child’s words while also considering their level of maturity and their current age and circumstances. It’s entirely possible that a manipulative parent could coerce a child into saying something they don’t want to say. And as any experienced Mom or Dad knows, teenagers can be difficult, awkward, and emotional - what they say today may be completely different tomorrow.
Fortunately, judges have a lot of experience in custody cases and use all their know-how, insight, and wisdom to come to the right decision.
Californian courts recognize that circumstances change, so it’s possible to modify custody orders. If both parties agree to the changes and the judge accepts that they’re in the child’s best interests, you should be able to update the custody order easily.
However, the courts generally prefer stability and continuity in a child’s life, so you’ll need to demonstrate excellent reasons for any changes. This is especially true where one parent wants to change the order, but the other doesn't. In such cases, the legal process usually takes longer.
In any divorce involving children, custody is among the most critical issues, and rightfully so. Virtually every parent wants to do right by their children, but it isn’t always easy to reach a mutual agreement with separation. That’s where a trusted family lawyer comes in.
An experienced family attorney may break the logjam and negotiate a settlement without the need to go to court. But if you do end up going to court, they can use their legal expertise and knowledge from previous cases to help present your case most effectively and reach the best possible settlement.
Your children’s wellbeing is likely the most sensitive part of any divorce settlement, and custody can be the most complex issue to resolve. Using an experienced family lawyer is one way - and possibly the smoothest path - to guide you towards the best possible outcome, for both yourself and your children.