The determination of a child’s custody is one of the most challenging moments for divorcing parents. Aside from each parent has a different opinion on visitation and custody, the child often wants a say on where they get to stay. Most states often have laws requiring the courts to take a child’s preference into consideration when determining custody in the case. This article explains the effect of your child’s preference on the custody case in California.
Custody Decisions in California
When parents can’t agree and arrange a custody agreement themselves, California courts take up the duty to decide for them. To make the determination, the court considers several factors:
- Each parent’s ability to act as a fit parent when left in complete control of the child
- The caregiving history of each parent with the child into account
- Each parent’s stability
- The health and safety of the child when placed in either parent’s care
- Whether either of the parents uses alcohol or drugs
- Which parent is more likely to promote and encourage a relationship between the other parent and the child
- The residence of any other siblings of the child
- Any other event or factor that relates and is relevant to the child’s welfare
- Finally, a judge will consider the preference of the child
In California, the courts will not base their decision for custody based on the gender of either parent. The overseeing judge equally weighs out the factors listed above.
When Do Courts Consider a Child’s Preference?
Provided that a child is old enough to voice an opinion that may be considered intelligent on their visitation and custody, California laws require the courts to give weight to and assess the child’s preference. If a child is 14 years and above, the judge will also provide them with a chance to state their custodial preference. However, the court may limit this freedom if they find the expression detrimental.
Although the laws have allowed children of at least 14 years to express their opinion freely, there isn’t a specific age that the judge is limited to. For instance, a judge may allow a child younger than 14 to state their preference, provided they find that doing so will serve the child’s best interests. If the court precludes your child from giving their custodial priority as a testament, the judge provides another means to have the child’s opinion expressed, such as a custody evaluator.
However, every case is different, and the weight given to a child’s preference is through broad discretion. The final decision is made with the best interest of the child in mind.
Must Children Testify on Their Custodial Preference?
According to California laws, judges get to decide whether a child can testify in their custody case. Usually, older and more mature kids have a higher chance of testifying in court. However, if your child wishes not to testify, the courts can never force them to do so. When a child opts to testify, either attorney’s questions are limited to ensure that the child is protected from any embarrassment or harassment.
When the child doesn’t testify in court, an appointed evaluator testifies in court on their behalf after their interaction. The court could also request a guardian ‘ad Litem’, which refers to an attorney representing the child, to testify the child’s opinion. Alternatively, courts may have the child testify in the chambers in the absence of their parents. Judges pick out this option when the child is relatively young or the matters discussed may get sensitive. Unless the child’s parents agree otherwise, the attorneys and court reporters must be present in the chambers during the testimony.
Can Custody Orders Change?
The general rule of thumb is observing stability for the children when dealing with custody cases. However, as children grow and change, it’s not out of the ordinary for change to warrant a change in custody. The first step is to discuss with the other parent and agree on the new custody arrangement. If you can’t agree, seek the services of a family lawyer.
If you can agree and reach a new agreement with the other parent, then the court will approve the agreement and facilitate you in getting a new custody order. As expected, the court will first go through your order and determine whether the changes were essential.
If you cannot reach an agreement with the other parent, a family law attorney will help phrase your facts into a compelling argument that warrants your request. The attorney will then file a formal motion for you with the court explaining why a modification would serve the child’s best interests.
Quite frankly, courts are quite hesitant on uprooting the children from a well-functioning custody agreement; therefore, you must handle the responsibility of showing what circumstances changed since the creation of the previous custody agreement.
As much as the courts are hesitant, they will not deny the child a chance at a better life in a friendlier custody agreement if you have a compelling case. Make sure you seek a family lawyer at this stage; their skills, and expertise in such cases will work wonders in helping you present a compelling argument.
What’s Best for the Child Wins
Whether or not the child testifies, the guiding principle for child custody cases has always been the best interest of the child. A child’s testimony is very beneficial in guiding the court to achieving this aim since every child, and every custody case’s circumstance is different. Parents also know and want what’s best for their children; when handling a custody claim, your attorney will help you communicate what you feel towards the child and their situation after a separation in the best words.
Additionally, such cases do not always have to go to court and cost you expensive litigation procedures that are slow and drain your energy and time. Consider hiring a family law attorney to conduct an alternative dispute resolution procedure for you and your ex-partner before jumping ship and into the courts.
