One of the most difficult aspects of divorce is determining custody of the children. Numerous factors play into the court’s decision regarding who will have physical custody, whether joint or sole.

The primary consideration is what’s in the child’s best interests. That leads to many parents wondering how much say the child has in requesting and being granted their choice of the custodial parent. Like many aspects of child custody, the answer is complex. Read on for more guidance.

Does a Child Have the Right to Choose Which Parent to Live With in California?

The short answer is: It depends. Because minors are not deemed fully emotionally grown, there are questions about whether or not a child is mature enough to make that decision. In addition, there can be concerns that one or both parents are putting undue pressure on the child to choose them. Adding to the complexity is the fact that every child matures differently and in different ways, so one child may be able to make that type of decision at, say, age 11, while another child at the same age wouldn’t be nearly mature enough to choose.

What Is the Age Factor for a Child to Choose Their Custodial Parent?

In California, a minor at least 14 years old can be considered “of sufficient age” to express a preference for which parent they want to live with. However, they can express that preference at any age, but it may not be viewed seriously when younger than 14. The courts must listen to someone of sufficient age if they want to say which parent they’d prefer to have custody of.

But even if someone aged 14 or older expresses strong opinions about which parent they want to have custody of, the final determination by the court will look at what’s in the child’s best interests. If the court has reason to believe that the parent the child chose isn’t in their best interests, it will likely rule otherwise.

What Is the Maturity Factor for a Child to Choose Their Custodial Parent?

Maturity can be a debatable topic, in which definitions can vary from person to person. One of the things the court will look for if someone aged 14 or older expresses a preference is what the foundation for that preference is. The judge or other official may interview the minor with experience working with children. They’ll look for the following situations:

Valid reasons for the child choosing one parent:

  • They’ve been abused or neglected by the other parent, or the other parent has been shown incapable of properly caring for the child.
  • They have a much stronger bond with one parent than the other.

Invalid reasons for the child choosing one parent:

  • The minor wants to avoid anticipated discipline (as in, one parent is more lax about discipline than the other–if the discipline is abusive, that’s a valid reason not to choose that parent).
  • One parent has pressured them unduly in their choice.
  • One parent engages in parental alienation, which means they routinely tell the child things about the other parent that are highly negative and usually untrue or unprovable.

What Types of Child Custody Exist in California?

There are essentially two types of child custody in California.

  • Legal custody. This has nothing to do with custody. Instead, it includes all the essential decision-making situations that parents face. These include educational or religious upbringing, medical care, extracurricular activities (sports, after-school programs, summer camps, etc.), and travel with either parent. This doesn’t mean the little day-to-day decisions, such as can the child have a friend over after school; those can be made on the spot by the parent the child is with. Instead, legal custody is for larger, more life-affecting decisions.
  • Physical custody. This type of custody determines who the child lives with.

Both legal and physical custody can be assigned as either sole or joint.

  • Sole custody: One parent will have the child residing with them full-time for physical custody. For legal custody, one parent (usually the custodial parent) will have the right to make all the decisions regarding the child’s upbringing.
  • Joint custody: For physical custody, the parents share having the child live with them through various arrangements (for example, one parent has the child on weeknights while the other has them on weekends). For legal custody, it means the parents share equally in making the critical decisions and must consult with each other and come to an agreement about them. It doesn’t matter which parent is the custodial parent. One could have sole physical custody (often when parents live in different cities or one parent has a demanding job and the other is a stay-at-home parent), but both could still share legal custody.

California courts prefer joint physical and legal custody because both parents are involved in the child’s life. But if they don’t see one or both as being in the child’s best interests, they may award sole legal and/or physical custody.

What Should I Do if My Child Has Strong Opinions About Which Parent They Want to Live With?

Call the Sarieh Law Offices at 949-542-6209 (Newport Beach) or 714-542-6200 (Santa Ana) for a free 30-minute in-depth case evaluation. We know determining custody can be stressful, especially if the spouses don’t agree on what the outcome should be. We can help you determine if your child’s wishes will likely be considered by the court and how that could affect the judge’s decision concerning who will be the custodial parent.