Must the Family Court Listen to the Preferences of a Child Regarding Custody?
April 17, 2015 - By Heather Saint and Matthew Smurda, Esq.
One of the most common questions that I hear from my clients with child custody issues is “Will the Judge listen to what kind of custody arrangement my child wants?” The answer to that question is: Maybe.
California Family Code Section 3042 provides that the Court “shall consider, and give due weight to, the wishes of a child in making an order granting or modifying custody or visitation.” Sub-paragraph ( c ) of the statute clarifies that the child will be permitted to address the Court if she is 14 years or older, unless doing so is not within the child’s best interests.
I have seen judges interpret this statute in several ways. Some will permit the child to take the stand like any other witness, others prefer to meet with the child “off the record” privately in their chambers. I have also seen judges flat out refuse to hear what the child wishes to say. Such refusal often is very frustrating for both the child (who feels that his/her voice is not being heard) and for the parent who the child prefers.
Recently, the California Court of Appeals addressed the issue of the “child’s voice” in the case of In Re Marriage of Winternitz, 2015 DJDAR 3526 (Feb. 27, 2015). In Winternitz, the California Court of Appeals found that it was not an abuse of discretion by the trial Court in deciding not to follow the young daughter’s wish to remain with her mother. The Court made it clear that such a refusal will be upheld so long as the trial Court gives “due weight” to the child’s preference.