Historical precedent in matters of child custody rarely, if ever, considered the wishes of the child. Today, when specific criteria’s are met, family court judges go to great lengths to give the child’s perspective due weight in custody proceedings. California Family Code section 3042 delineates the rights of children to voice a preference to their guardianship, stating:

If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.


If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests.

As with many aspects of the divorce process, there is an inherent degree of subjectivity that must be managed by judges and family lawyers when terms like “the child’s best interest” are written into the DNA of the law. Modern, progressive family law seeks to be gender-blind, avoiding bias toward either the mother or the father when determining what shape custody will take. In California, unless clear and provable circumstances like history of abuse, mental instability, patterns of addiction, insurmountable geographic obstacles and/or financial incapacity disqualify one parent as a guardian of the child’s best interest, family law strives for a 50/50 custody in order to provide some measure of stability for the child in the wake of divorce.

Divorcing parents are advised to try to develop an equitable custody plan on their own. If custody must be arbitrated, the factors that a judge considers when determining what constitutes a child’s best interest include the age of the child, his or her relationship to each parent, each parent’s caretaking capacity in the wake of separation, the role each parent played in caretaking prior to separation, the home environment they can now provide, the needs/preferences of siblings, as well as any other factor that might have a negative effect on the child’s physical, mental, and/or emotional development.

In striving to make a fair and reasonable custody ruling, judges will often meet with a child directly, and if the child is 14 or older, attempt to incorporate due consideration of the child’s preference. California Family Code and the Rules of Court provide guidelines for how a child may be heard in these circumstances. Depending on the needs of the case, a judge can either hear a child in open court proceedings or in private chambers. In the latter instance, a court reporter will be present to take down the child’s testimony and a family lawyer may attend to help the child state his or her preference. Judges are particularly keen to detect undue parental influence, an all-too-common occurrence, in which one parent exerts pressure on their child to choose in their favor. The emotional stakes in custody proceedings can be astronomical, but it is the judge’s mandate to separate external pressures from the child’s participation in determining his or her best interest. Because of the prevalence of parental influence, parents are almost never allowed to be present during a judge’s private hearing with a child.

Family Code 3042 and California Rules of Court 5.250 give the court further options to determine a child’s preference. The court might appoint a child custody evaluator or investigator to conduct a separate investigation into the specific factors at play in a family. It may advise or even require the family to meet with a specifically trained Court Mediator, who can guide parents and children through the process of developing an equitable and supportive custody plan. It may appoint a lawyer to represent the child separate from his or her parents’ council.

Once a thorough examination of the child’s views has been conducted, a judge will take that view into consideration, but consideration does not imply automatic consent. It is always the paramount duty of the court to determine custody in the child’s best interest and the child’s views on the matter must be weighed against the case’s other major factors in order to make a beneficial ruling.

Desai Family Law is a family law specialist handling all facets of divorce and child custody matters. For a free consult contact our office at (562) 999-3774. Find out more about California Child Custody Decisions with our team of attorneys.


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