One of the most emotionally stressful and divisive issues in a divorce is determining where the children will live following the dissolution of the marriage. Divorcing couples can come to an agreement on issues of legal custody and physical custody which can then be approved by a judge (this is the case with practically every aspect of divorce in California), but, if they cannot do so, a California family court judge will make the decision. A frequent question divorcing spouses (and sometimes children themselves) often have in this process is whether the child will have the ability to decide which parent they will live with following a divorce.
How California Courts Decide Custody Generally
First off, it is important to understand some basic aspects of custody in California. A custody order in a divorce will include a determination (which can, again, be made a judge based on arguments, or be the result of the parents’ agreement) on both:
1) physical custody, which is the determination of where the child reside, and according to what schedule if custody is shared jointly; and
2) legal custody, which is the determination of which parent will have the right to make important decisions on the child’s behalf, such as educational, medical, and travel decisions.
Both physical custody and legal custody could be awarded to one parent in sole custody, or to both parents in joint custody (and it could be that one parent has sole physical custody while both parents share joint legal custody, and vice versa).
Where a judge is making a determination of both physical custody and legal custody issues (and also when the judge is reviewing a settlement agreement for approval), he or she will base this determination on what arrangement will serve the best interests of the child, which is a legal term of art based in California law.
The legal factors that a judge must consider in determining what custody arrangement will serve the best interests of the child include:
- The child’s age
- The relationship of the child’s parents and any other persons who may significantly affect the child’s welfare
- The preference of the child (if the child is old enough to express this)
- The current situation of the child
- The child’s adjustment to current geographical and schooling situation
- The stability of the proposed custody arrangement
- The capacity of the parents to provide adequate child care, love and support
- History of domestic violence
- Other meaningful factors asserted by the parties
When a Child’s Preferences Will Factor Into a Custody Determination
Note that one of the factors listed above is indeed the preference of the child. Putting this all together, yes, it is the case that a child’s preference for a living situation can factor into a court’s determination, but it is only one of many factors that a judge will consider.
Furthermore, the child’s age and maturity will both factor into whether the court will consider the child’s preference, as well as how much weight to put on it. California law does say that children 14 and over will be permitted to address the court to provide their preference on custody and determination, but it may decline to have the child testify if it determines that would best serve the interests of the child. A court may also consider the preference of a child younger than 14, but, again, this will be a determination based on the particular circumstances of the child.
Note that attempting to curry favor with a child by demonizing the other parent is a poor strategy that can easily backfire, as family courts do want to foster ongoing relationships between the child and both parents, and such actions could weigh against a parent who has tried to antagonize the other parent via the child. If there are legitimate reasons the other parent should not have custody of the child, you are much better off presenting these arguments directly to the judge via your family law attorney.
Get Answers to Your California Family Law Questions
At Kearney | Baker in Pasadena, we represent spouses through all aspects of the dissolution/termination process. Our partners, Brian A. Baker and Gary W. Kearney, are both Family Law Specialists, as certified by the California State Bar. To schedule a consultation regarding any questions about family law in California, contact one of the family law attorneys at Kearney | Baker today at 626-768-2945.