Deciding which parent gets custody of children is one of the most contentious topics during divorce proceedings. Although this matter is often decided by the parents, it can sometimes be decided by the court system. When that occurs, it’s not uncommon for children to disagree with the choice and express their desire to live with the other parent.
Criteria Judges Consider When Allowing Children to Speak to the Court
In California, children under the age of 18 are generally unable to choose which parent they want to reside with on a permanent basis. However, there are certain criteria that judges will take into consideration if both parents agree that their child should be able to choose their residence, such as:
- The child is 14 years of age or older.
In California, it must be determined that the court is acting in the best interest of a child when determining his or her residence. If a child is 14 years of age or older, he or she can address the court concerning his or her preferred place of residence unless the court finds that doing so isn’t in the child’s best interests.
- The child is of sufficient age and has the capacity to understand the nature of testimony.
If a child is at least 14 years old and determined to be capable of understanding testimony and won’t be at risk emotionally, he or she may be allowed to address the court and indicate his or her preferred parental residence.
- The child hasn’t been pressured or manipulated into indicating a residential preference.
In order for the judge to grant a child the ability to speak to the court, the judge must believe that the child hasn’t been pressured or coerced in any way by either parent to indicate a preference for place of residence.
There is pending legislation in California, Assembly Bill 2098, that would change the age from 14 to 10, as of January 1, 2017 if it passes.
Who is Responsible for Telling the Court when a Child has a Residential Preference?
If a child who is 14 years of age or older wishes to address the court, the following people must inform the court of that request:
- Minor’s counsel
- Counselor dealing with child custody issues