Child custody: Does the child get a say?

Child Custody is one of the most important issues to be decided in a martial dissolution case. Indeed, parents going through divorce may end up spending tens of thousands of dollars and countless sleepless nights fighting over child custody and visitation. The issue of child custody has two components: (1) legal custody, and (2) physical custody. Legal custody is normally joint, because legal custody provides the parents the right to make major decisions regarding the child's health and welfare, as well as the right to get information from schools and medical professionals.

Physical custody is a little trickier as it sets out the schedule for when each parent has custodial time with the child. Family Code Sections 3040 et seq. set out the guideline for how the court should make decisions regarding physical custody. There are no preferences in California law based on the sex of the parent. This means that mothers do not have an automatic advantage in custody decisions. Visitation rights are controlled by Family Code Sections 3100 et seq. While the court can take many factors into consideration, the overriding factor is the best interest of the child. Consequently, many parents ask, "what about what the child wants?"

Does the Child Have Say?

The answer to that question lies in Family Code Section 3042. Until 2010, the old rule was that the court could consider the child's preference if the child was "of sufficient age and capacity to reason so as to form an intelligent preference as to custody." After the passage of Assembly Bill 1050 in 2010, which took effect Jan. 1, 2012, Section 3042 was amended such that courts are now required to permit a child who is 14 years of age or older to address the court regarding custody and visitation, unless the court determines that doing so is not in the child's best interest. In that case, the court would have to make such a finding on the record. Furthermore, the amendment also requires the court to provide an alternative means of obtaining the child's input to receive information about the child's preference.

Pursuant to Section 3042(b), the court controls the examination of the child in order to protect the best interests of the child. This may be implemented by having an in chambers meeting with the child (i.e., in the judge's office), instead of testimony on the witness stand in open court, where the child would have to face both parents while testifying. The court can also order a custody evaluation so that a qualified family therapist may question the child, instead of a judge or lawyers. Another option is to appoint minor's counsel so that the child has his or her own attorney with whom the child can discuss preferences and avoid having to appear in court altogether.

Family Code Section 3042 does not prevent a child under 14 from addressing the court about his or her preference. It only makes it mandatory for judge to hear the child's presence if the child is over the age of 14 and wants to be heard.

Mind the Big Picture

When a child is allowed to express his or her preference to the court, that preference will not end all inquiry. It is one factor, albeit an important one, that the court will consider in making a decision. For example, if the court realizes that the child's preference to live with one parent is based on his or her preference to live in an unsupervised, discipline-free home where there are no rules, then the overriding factor of "best interest of the child" takes over and the child's preference has no bearing.

Also, if the court orders a custody evaluation or minor's counsel, the appointed professionals will seek to determine the truth about the child's preference and whether he or she was manipulated into expressing a certain preference. If manipulation is found, such a finding will have a negative impact on the manipulating parent's custodial time.

The soundest advice is that when going through a divorce, decisions regarding your child should be based on what is in the child's best interest. Brainwashing or manipulating your child to hate the other parent, or making them feel guilty if they enjoy time with the other parent is not good for the child. Keeping the child away from the parent, unless it is for the child's own protection, is harmful to the child. Children need both of their parents. Making decisions based on the best interest of the child rather than your own, will help everyone get through the divorce process better.