In a child custody and/or visitation case, the judge must consider several factors in determining what is in the child’s best interest. One factor is the child’s preference of which parent the child wants to stay with. California Family Code §3042(a) specifically states that if a child is of “sufficient age and capacity to reason as to form an intelligent preference,” then the judge “shall consider, and give due weight,” to the child’s preference. Fam. C. §3042(a). As stated previously, the child’s preference is only one factor, and will not be conclusive as to what is in the best interest of the child. See, e.g., Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110 (holding that it is in the best interest of a 14-year-old child to stay with his mother, despite the child’s preference to live with his father).
It should be noted that a child’s preference is given more weight and consideration when a modification of a child custody/visitation order is sought, as opposed to an initial custody/visitation proceeding. The rationale for this is that an initial determination of custody/visitation holds more uncertainty about how the arrangement will work out in the future, whereas in a modification proceeding the child’s preference will be based on experience and could be considered more informed. See Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103 (determining that the preferences of children, ages 10 to 13-years-old is proper if it is determined that the child has sufficient capacity to form an intelligent preference); see also Marriage of Burgess (1996) 13 Cal.4th 25, 30.
Since January 1, 2012, the California Legislature has developed a mechanism where the child can provide his/her preference directly. See Fam. C. §3042(c)-(e). If a child is 14-years-old or older and wishes to be heard by the court regarding the issue of custody or visitation, then the child must be heard by the court, unless the court determines that not doing so would be in the child’s best interest. Fam. C. §3042(c). For a child that is under the age of 14-years-old, the court may allow him/her to address the court, if the court determines it is appropriate pursuant to the child’s best interest. Fam. C. §3042(d). If the court does not permit a child to address the court, then alternative means of obtaining the child’s input must be provided (i.e., providing the child with minor’s counsel, an evaluator, an investigator or a mediator to express the child’s preferences). Fam. C. § 3042(e)-(f). Additionally, the Family Code requires that a child that is 10-years-old or older must be heard by the court in chambers regarding the child’s feelings and thoughts about (1) the custody proceedings; (2) the child’s parent(s); and (3) the child’s preference as to custody. Fam. C. §7891(a).