Can the children decide whom to live with? This is a common question asked. Parents must insure not to use their children as pawns against the other parent because doing so can lead to emotional and psychological harm to minor children involved. During a divorce there will be anger, and hurt feelings but both parents must attempt to keep their children’s best interest in mind when creating a custody and visitation plan.
So what is the answer to our question? California Family Code §3042, provides some guidance to help answer this question, in that it states that “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”. This same code was amended to include a provision that if the child is 14 years of age or older and wants to talk to the Judge about custody and visitation, the child shall be permitted to do so, unless the court determines that it would not be in the best interest of the child. If the child is not permitted to speak then the court shall state the reasons on the record.
This same code then goes on to say that nothing in the section shall be interpreted to prevent a child younger than 14 from addressing the court about custody or visitation, if the Judge determines that it is appropriate and in the children’s best interest. If the child is not allowed to speak the court shall provide an alternate form of obtaining the child’s input such as appointing an attorney for the child, a mediator or ordering an investigation.
As you can see there is no real easy answer to the question and no set age at which the child can decide or control with whom they will live. There are many factors to consider in making custody and visitation orders.
For assistance from a quality Orange County Custody Attorney who is certified as a family law specialist call 714-971-8000.