child preference

Child's Preference in Custody Decisions by Cassandra Hearn


A common question in many custody cases is: when is a child old enough to decide where he or she wants to live? The simple answer is that no child should ever have to decide between parents. However, in some rare circumstances , it may be appropriate for a child under the age of eighteen to express his or her preference to a trial judge.


Any child custody determination in California is guided by what is in the child's best interest. California law states that if a child is of adequate age and maturity, the court shall consider the preference of that child. The law does not define what may be considered a child of adequate maturity, and that would be up to the judge to decide. However, the statute goes on to say that if a child is at least fourteen years old, then the child shall be permitted to address the court and express his or her desires.


A variety of people are permitted to make the request to the court that a child be allowed to address the judge. An attorney for either parent may file such a request, but the list does not end there. If an attorney has been appointed to represent the child (known as “minor’s counsel”), that attorney may make the request. A mediator who is permitted to express his or her opinion to the court may also make the request. Moreover, the judge may independently ask the parties about the possibility of having the child come to testify.


If a judge denies the request of a party to allow a child to express his or her preference, then the trial court shall provide alternative means of allowing a child to provide input.  In San Diego, those alternate means usually include the use of: Family Court Services, a court-ordered child custody evaluator, or even a counselor.


Although there are clearly avenues to ask the court to allow a child to testify to his or her preference, this may not always be the best option for the child. It is important to remember that a child is experiencing emotional turmoil and upheaval during a divorce or custody case. Requiring the child to "choose" between the parents may not be what is in the child's best interest


We have experience with child testimony, when it is appropriate, and how to make it beneficial to our clients and their children. Contact our office at 619-800-0384 to talk about your options and your case.