Does A Child Have Any Say On Which Parent He Lives With?

Family Code Section 3042 requires the Court to consider a child’s preference regarding custody if the child is of sufficient age and capacity to form an intelligent opinion on the issue. As of January 1, 2012 the California Legislature amended the statute to add that the judge must also consider  a child’s wishes concerning visitation. The statute requires the judge to allow a child who is at least 14 years old to directly address the court regarding custody and visitation, unless judge finds that it would not be in child’s best interests, in which case the reasons must be stated on record.

This section does not prevent younger children from addressing the Court (which means speaking in the courtroom) on these issues if appropriate and consistent with the best interest of the child. Family Code §3042 requires the Judge to provide alternate methods for learning about child’s preferences if it precludes calling him or her as witness.

If there is a disagreement as to a custody plan while the divorce is pending one parent must Request an Order of the Court regarding custody.  This is done in writing, but live testimony may be given and the Court must allow a parent to speak.  Other witnesses may be called as well.  The other parent generally files a response to the request for order. He or she may also give live testimony and call witnesses.  Different counties have different approaches if parents cannot agree on a custody schedule.

It is a rule throughout California that prior to the hearing  the parents must participate in “mediation.”  I put the word in quotation marks because many counties (including Ventura, but not including Los Angeles or Orange) are reporting counties.  This is a very important difference.  The mediatior in a reporting county gives a recommendation to the judge; the judge usually follows the recommendation.  This recommendation is necessarily made without a great deal of interaction with the parents, other interested parties and the children.  Sometimes the recommendation may seem wrongheaded.

In Ventura County kids at six and older must come to the mediation (there’s a nice waiting room) and the mediator may speak with them.  In contrast in Los Angeles and Orange County the mediator speaks only to the parents and makes no recommendation.  The kids do not have to attend the mediation.

Obviously, it is often the case that one party is very unhappy with the mediator’s recommendation.  So, it is important to know before hand the type of “mediation” you will be attending.  A Los Angeles divorce lawyer must have experience in the venue to be an effective advocate for his client and to ensure that the client is properly prepared for the mediation and the hearing.

As attorney Ira H. Lurvey eloquently states ” Though Family Code Section 3042(a) and the cases speak poignantly to giving “consideration” to a mature child’s preference, existing case law seems to support the conclusion that what constitutes such “consideration” is almost exclusively in the eye of the beholding court. No reported case seems to have reversed a trial court that ordered a custody configuration contrary to that requested by a child. In the guise of court-knows-best, a mental health professional and court apparently can, with impunity, disregard the wishes of an adolescent who states preference for one parent or the other. Thus, be extremely wary of relying on the premise that merely the articulated preference of a child may carry the day.”

Posted in Child Custody

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