Can Children Pick Who They Want to Live With?

Making the difficult decision to divorce is even harder when there are children involved. Separating parents may find that their custody battle causes the most grief and anxiety around what to do – both parents want to remain close with their children, but it’s more than likely that one parent will have to become the primary caregiver. Our Irvine family law attorneys have a lot of experience navigating this emotional proceeding and can help you and your family decide what’s best.

You might be wondering whether your children will have any say in the matter of their custody, and California does have specific guidelines regarding whether children have a right to play a role in these proceedings. This article will review what state laws say about whether or not children can express their preference in a custody hearing.

Custody Hearings and the Child’s Opinion

As you may already know, custody hearings in California do not favor one parent over the other because of gender. Instead, they will look to award custody to the parent who can best showcase that they have the time, energy, and resources to become their children’s primary caregiver. Usually, this will require evidence that the parent is safe, loving, and willing to care for their child and has a stable job, housing, and childcare support.

However, California courts will also allow children to state their peace on the matter when they meet the age requirement and can prove they have the ability to voice an opinion on the matter. In general, children who are at least 14 years old are able to state their custodial preference in court unless a judge rules that doing so would only make the case more difficult.

It’s important to note that California law allows children younger than 14 to voice their opinion on the matter, which is often done through a custody evaluator. Rather than having such a young child testify in court, the judge will order a professional examination of the child and their wishes in order to get a better sense of each parent and where the child feels most comfortable. This investigation will usually be conducted by either a mediator, a child therapist, or other such professional. The judge will heavily weigh the exact nature of the child’s preference, giving deference to statements that attest to that parent’s capability to raise a child over whether or not the child simply prefers them because they have a more relaxed parenting style.

Even if your child does express a preference, it’s important to remember that their preference won’t always be taken into account. Sometimes, adults can see what children can’t, and a preference for one parent doesn’t always mean that the child is better off in their care.

Navigate the Custody Hearing with Our Irvine Family Law Attorneys

Custody hearings are by far some of the most difficult aspects of a divorce, and our Irvine family law attorneys can be there for you every step of the way. Contact our offices today to get started.

Frequently Asked Questions

At what age can a child choose which parent to live with?

There is no age at which a child chooses. California requires the court to consider the wishes of a child who is of sufficient age and capacity to reason and form an intelligent preference, and a child fourteen or older is generally entitled to address the court unless the court finds it is not in the child’s best interest. Even then the preference is one factor among many, weighed alongside stability, each parent’s capacity, and the child’s overall welfare. Custody remains the court’s determination until the child turns eighteen.

How does a child’s preference reach the judge?

Rarely by direct testimony, which courts avoid where possible because of the burden it places on the child. The usual channels are a child custody recommending counselor or mediator who meets with the child and reports, a court-appointed custody evaluator, or minor’s counsel appointed to represent the child’s interests and convey their views. Where a child does address the court, it is typically in chambers rather than in open court, and the court can control the format to limit the pressure on the child.

Does a court discount a preference it thinks was influenced?

Yes, and courts watch for it. A stated preference that tracks one parent’s talking points, appears suddenly after a period of conflict, or is expressed in adult language about legal or financial matters tends to be given less weight. What increases weight is a preference grounded in the child’s own daily life, school, friends, activities, routine, and consistency over time. A parent who coaches a child usually damages their own position more than they help it.

What happens when an older teenager refuses to follow the schedule?

This is a practical problem more than a legal one, and courts recognize it. A sixteen-year-old with a car and a job cannot realistically be compelled to comply, and orders that ignore that produce enforcement motions rather than compliance. The productive responses are modifying the order to reflect what is actually workable, addressing the underlying reason for the refusal, and where the resistance appears driven by one parent’s conduct, documenting that pattern. The custodial parent is still expected to make genuine efforts to comply.