Puja Sachdev | March 30, 2025 | Blog
Child custody disputes can be among the most challenging aspects of a divorce or separation. Parents often wonder whether their child has a say in where they live and, if so, at what age their preference becomes legally significant. While California courts consider a child’s wishes, they are not the sole deciding factor in custody decisions. Understanding how the law treats a child’s preference can help parents navigate this sensitive issue.
California Law and a Child’s Custody Preference
Under California Family Code § 3042, the court must consider a child’s preference if the child is at least 14 years old, provided they have the maturity to express an intelligent preference. However, this does not mean that a child can unilaterally decide which parent to live with. The court will evaluate the child’s wishes along with other factors to determine what is in their best interests.
If a child under 14 expresses a preference, the court can consider it but is not required to give it significant weight. The judge will assess the child’s maturity, reasoning, and whether their preference appears to be influenced by external factors such as parental pressure.
The Best Interests of the Child Standard
California courts prioritize the child’s best interests over parental preferences or a child’s stated wishes in all custody matters. The court evaluates multiple factors, including:
- The child’s age and maturity: The court gives older, more mature children greater consideration.
- The child’s relationship with each parent: A strong emotional bond with one parent may influence the decision.
- Parental stability and ability to provide care: The court prefers a parent who offers a stable home environment.
- The child’s health, safety, and welfare: Any history of abuse, neglect, or substance abuse by a parent will weigh heavily in the decision.
- The child’s ties to home, school, and community: Disrupting a child’s routine may not be in their best interest.
Even if a child expresses a strong preference, if the judge determines that their chosen living arrangement is not in their best interest, the court can rule against their wishes.
How Does a Child Express Their Custody Preference?
If a child wants to express their preference regarding custody, they typically do so in one of the following ways:
- Speaking to the judge in chambers: In some cases, the judge may interview the child privately in their office to minimize emotional stress.
- Through a child custody evaluator: A court-appointed evaluator may interview the child and report their findings to the judge.
- Through a minor’s counsel or guardian ad litem (GAL): The court may appoint an independent attorney or GAL to represent the child’s interests.
- By providing testimony in court: Though rare, a judge may allow a child to testify in court if deemed necessary.
Judges take care to ensure that a child’s testimony or involvement does not expose them to undue pressure from either parent.
Can a Child Refuse Visitation?
Even if a child prefers to live with one parent, they generally cannot refuse court-ordered visitation with the other parent. The custodial parent is responsible for ensuring that visitation occurs. However, as children grow older, courts are more likely to respect their wishes regarding visitation if they have a valid reason.
When Can the Court Overrule a Child’s Preference?
There are several instances where a judge might overrule a child’s preference:
- If one parent is unduly influencing the child
- If the parent chosen by the child has a history of domestic violence, neglect, or substance abuse
- If the child’s preference would disrupt their education, stability, or emotional well-being
Ultimately, while a court considers a child’s preference, it will overrule it if living with the chosen parent would jeopardize the child’s well-being, safety, or overall best interests.
Seeking Legal Counsel
If you are involved in a custody dispute and have questions about your child’s rights and preferences in California, consult with an experienced San Diego child custody attorney. An experienced family lawyer can help you advocate for your child’s best interests.
Contact our child custody lawyer for a consultation today
Our San Diego Divorce Lawyers, APC, team is here to help you, feel free to give us a call at (619) 866-3756, or contact our family lawyer now for a consultation. At that time, you can receive some legal advice to advocate for those ones that you love the most.
San Diego Divorce Lawyers, APC
2851 Camino del Rio S #430
San Diego, CA 92108
(619) 866-3756
