DOES A CHILD GET TO CHOOSE??
Frequently a client will ask me: "When will my child be old enough to choose whom she (he) wishes to live with?"
We do have a duty in family law court to consider the child’s wishes. It has always been California law that the Judge must consider and give due weight to the child’s wishes in making determinations regarding custody if the child is of sufficient age and capacity to form an intelligent preference regarding custody. This is as vague as it sounds. So, starting January 2012, a child aged 14, who wishes to address the Judge, must be permitted to address the Court regarding custody or visitation, unless the Judge determines that in the particular case it would not be in the child’s best interest.
At this time, the individual courts are wrestling with how to facilitate a child’s testimony. It is not clear yet how individual judges will handle children’s testimony. Will the child be up on the witness stand? Will the Judge interview the child in judicial chambers? Will the attorneys for the respective parents have an opportunity to examine and cross-examine the child? These are unknown and developing areas.
As you weigh your child’s voice in this momentous decision please have this in mind:
Considering your child’s wishes is different than allowing your child to choose.
This is a very misunderstood area of child custody law. Please consider that a child is subject to compulsory attendance at school until high school graduation, a child must be 16 before obtaining a California driver’s license, 18 to vote, 18 to marry, 18 to enlist and 21 to drink alcohol. Yet, the word is out on the street that a kid can just choose which parent she (he) wants to live with. It is not so.
The overriding concern of California child custody law is making choices for a child that are in the child’s best interest. Does a child actually know what is in his or her best interest? Is it not an adult responsibility to determine what is in that child’s best interest?
In the end, a Judge will base his or her choice of the primary custodial parent on many factors, one of which will be the child’s wishes. Remember, the Judge must base his or her decision on the child’s best interest – often times what is in the child’s best interest is not what the child prefers.
In our office, we have successfully represented parents in custody disputes for over 20 years. I have served as a minors’ counsel, directly representing children in the custody dispute. I have also served as a Judge pro temp, special master and arbitrator in custody litigation. This is a complex area of family law, which deserves the highest degree of attorney competence and know how.. We welcome the opportunity to meet with you personally and answer your questions.
Olga Fabrick is an Upland family lawyer and is a Certified Specialist in Family Law.