Will a Judge Consider a Child’s Custodial Preference?

Parents who are involved in a child custody dispute often ask if the child can decide with which parent he or she would like to reside.

Initially, it should be understood that there is no fixed age at which a child s preference will control this decision. Family Code 3042(a) provides as follows:

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

Whether a child meets the definition of sufficient age and capacity depends upon the facts of the case. The child s chronological age is not the only determining factor. For example, a sixteen‑year‑old child may still be too immature to be able to decide where he wants to live. On the other hand, a ten‑year‑old child who is unusually mature might be granted her expressed preference. In general, however, the older the child, the more likely it is that the judge will consider the child s residence preference.

Another concern that divorcing parents must consider is how to get the court to listen to the child. Judges like to avoid having children testify in court, and they look for ways to obtain the child s input without having to do so by live testimony. Sometimes, a judge will interview the child in chambers, but such interviews are not as common as they once were. More recently, family law judges are appointing attorneys to represent children in child custody cases. The Family Code permits a judge to appoint an attorney to represent the child. This attorney is authorized to interview the child and to present her opinions to the court as evidence.

The judge can also appoint a mental health professional to conduct a detailed child custody evaluation. When this is done, the evaluator conducts lengthy interviews with the children, their parents, and other collateral references. On occasion, the evaluator will administer standard tests to the participants. At the end of the evaluation process, the evaluator usually prepares a detailed report that discusses the children and their parents in detail. Where the child has expressed a preference, the mental health professional can determine if the child meets the requirements of Family Code 3042(a).