One of the most challenging areas of divorce for parents is determining the types of custody and who has them and visitation for one parent if the other parent has sole custody. It seems like the decision should be entirely left to the adults. But there are times when California law allows the courts will give the child’s wishes some weight. Here’s what you need to know.

When Do California Courts Take the Child’s Wishes into Account for Custody or Visitation?

California law specifies that children aged 14 and older can make their custodial or visitation preferences known in court. However, judges can also hear the wishes of children younger than 14 if they think it benefits their decisions.

That said, hearing the child’s preferences isn’t the same as agreeing with them. Judges have the latitude to overrule a child’s requests if the judge believes they’re not in the child’s best interests. That’s partly based on the idea that legally, children can’t choose where to live until they turn 18.

What Are Some Reasons a Judge Would Not Honor a Child’s Custody or Visitation Requests?

It’s important to understand that each case is unique, and each judge will weigh various concerns when making custody and visitation rulings. But in general, judges are likely to place a higher value on opinions from older children than younger ones.

If the judge asks the child what their wishes are, the reasons the child gives could sway the judge one way or the other. For example, if a child says one parent doesn’t make them do chores while the other parent does, so they’d prefer to live with the second parent, the judge isn’t likely to give that much credence. But if the child prefers staying with one parent, so they don’t have to change schools or are closer to extended family members, the judge may place more importance on that.

If there’s reason to believe that your ex is putting undue pressure on the child to tell the court they want to live with the ex, that’s something the judge should know about (if you have evidence). Divorce with custody is difficult in the best of times, but if things have become that acrimonious, it’s recommended that you work with an experienced custody family law attorney.

Will My Child Have to Testify in Open Court as to Their Custody and Visitation Preferences?

This is decided on a case-by-case basis. Children who are older or show strong signs of intellectual and emotional maturity are more likely to be asked to testify. However, if a child at any age does not want to testify in court, they will not be forced to.

Suppose the judge has reason to believe that it’s not in the child’s best interest to testify in court. In that case, there’s also the option to have the child speak with a custody evaluator, mediator, investigator, or guardian ad litem. That person can then testify on the child’s behalf in court. This can also happen if there are allegations of child abuse of any kind or if the parents have not been able to agree on custody and visitation.

Another option, frequently used with younger children or when there are sensitive topics to be discussed, is having the child testify directly to the judge in the judge’s chambers. Unless the parents both agree that the child can speak alone to the judge, the court reporter and attorneys will be present, but not the parents.

What Should I Expect if My Child Will Testify in Court?

Usually, these kinds of hearings are open to the public. However, given privacy concerns for the child as well as the potential for the child to feel pressured by the presence of their parents, the judge may decide to hold a closed hearing instead. The judge will also decide if either or both attorneys will be allowed to question and cross-examine the child. It’s not necessarily a given that either or both will be allowed to do this. If one or both are allowed, the judge will have restrictions on the questions allowed. This is done to ensure that only age-appropriate questions are asked and to avoid putting undue emotional pressure and stress on the child.

If the child is asked what they’d prefer custody and visitation to be in court and says they don’t want to answer, the court cannot force them to answer. But if the child plainly states that they want to offer their opinion in the hearing, the court cannot stop them from doing so, nor can either attorney request that their opinion be silenced.

Suppose the court decides against having the child testify in the hearing but wants to know their opinion. In that case, it can use one of the methods discussed above as long as the information gathered is presented in writing and the person who gathered it is available for interview by the attorneys.

What Should I Do if My Spouse and I Are Divorcing and Don’t Agree on Custody or Visitation?

Call us at 949-542-6209 (Newport Beach) or 714-542-6200 (Santa Ana) for a free 30-minute in-depth case evaluation. We know that the happiness and well-being of your children are tremendously important to you, as well as your ability to play a significant role in their lives. We can discuss the options available to you and how the courts will likely view your specific divorce, custody, and visitation case.