Focusing On Family Law – And You
Child custody is decided on what is in the child’s best interest but not necessarily on the child’s preference. California and other states restrict the weight that a child’s preferences play in divorce custody issues.
California gives some rights to a child who is at least 14 years old. There is a legal presumption that children who are 14 are sufficiently mature.
Those children may address the court unless the court finds that their participation is not in their best interest. Children under 14 may address the court if the judge finds that their participation is in their best interest.
States have different laws and ways of addressing whether it is more important that children have input in their custody instead of being shielded from their parents’ disputes. In all states, however, judges may consider the child’s preference if they are sufficiently mature.
Thirteen states do require a court to consider a child’s preference. All other states and Washington, D.C. make judges consider a mature child’s preference.
New Mexico and West Virginia, like California, have the legal presumption that children who are 14 are sufficiently mature. Indiana and Utah give extra weight to opinions of children in this age group. Mississippi, Oklahoma, Tennessee, and Texas presume children are mature when they are 12.
Generally, older children have more impact while children whose ages are in the single digits have less. Children from 10 to 13 fall in an unclear area and their input depends on the state, the court, and their maturity.
Georgia is the only state that permits a child to select the parent who will have physical custody. But that child must be at least 14 and the judge needs to approve their choice. Children who are 11 can share their opinion with the court which may be rejected by a judge.
Judges do not have to award custody according to the child’s wishes. The parent’s criminal history, the relationship between the child and their parent and other factors also play a role. Judges try to assess whether a child’s preference is based upon persuasion or permissiveness which is less persuasive than substantive reasons.
Children may share their preferences with a judge, custody evaluator or someone appointed by the court to represent their interests. Children do not speak on this issue in open court because it can be intimidating and emotional.
Judges usually interview children in their chambers with a court reporter and the child’s representative in attendance. Parents cannot attend but sometimes their attorneys may be there.
Attorneys can help you with custody issues. Their representation may protect your rights and the child’s best interests.