Types of Custody
As with most states, California has two types of child custody: legal and physical. Legal custody refers to making important decisions for the child, such as medical decisions or religious upbringing. Physical custody refers to where and with whom children live. Both legal and physical custody can be shared between both parents, or one parent may be awarded sole custody. It is not uncommon for physical custody to be shared while one parent is given sole legal custody and vice versa.
Typically, child preference doesn't enter into custody decisions regarding legal custody. However, when it comes to physical custody, the courts may consider a child's preferred choice when making their decision.
What the Courts Consider When Determining Physical Custody
While children may have the opportunity to voice their preference, it is not the courts' sole focus. When making a physical custody determination, their first concern is establishing a custody order that serves the child's best interests. They will also consider how the custody order supports the child's relationship with their parents, ensuring parents receive adequate and appropriate parenting time.
Other factors considered when determining custody include:
- The age of the child
- The health of the child
- Where both parents live
- Where the child goes to school
- The child's needs, including any special needs or accommodations
- The ability of the parents to care for the children
- The existing relationships between the child and their parents
- Whether there is a history of domestic violence or abuse
Many people assume that the courts privilege mothers over fathers when making custody determinations. This is not the case in California. Instead, the courts work to ensure that the child's needs are met.
When Is Child Preference Considered?
In California, child custody is guided by the California Family Code. According to Code 3042, the courts will consider and give weight to a child's expressed preference. Children 14-years old or older who wish to address the court are allowed to do so unless the court decides that this is not in the child's best interest. This code also expressly states that children under 14 are not prevented from addressing the court when the court determines it is in the child's best interests.
However, the courts are very concerned with shielding children as much as possible. Custody litigation is often intense and acrimonious. Instead of exposing the child to this, the court may decide it is not in the child's best interest to call them as a witness, but they still want to know the child's preferences. When this happens, the courts will find alternative ways of obtaining this information from the child.
Several people can request that the court hear a minor child's preference in a custody or visitation matter:
- The child's legal counsel
- An evaluator
- A mediator
- An investigator
- A parent
- A parent's attorney
Additionally, the judge may also make their own request to hear the child's preference if no other request is made.
Can Children Request Modification of a Custody Order?
While the courts consider a child's preference, children do not actually have control over where they live until they reach 18. Additionally, a minor child cannot request modification of a custody order themselves. If a child wants to change where and who they live with, one of their parents must be the one to initiate the modification.
Modifications of custody orders are taken very seriously. The courts will only grant them in cases where there has been a significant change of circumstances that renders the original order inadequate. This change must be one that is lasting and/or permanent.
Examples of reasons to seek a modification include:
- Change in a child's needs
- Relocation of a parent
- The child is in danger
- Change of employment or income
- Change in the physical or mental health of a parent
When making custody orders, the courts work to provide a solution that creates lasting stability and security for the children in question. Therefore, they will only modify custody or visitation orders when it is in the child's best interests.
What to Do When Your Child Wants to Change Custody or Visitation
It can be hard to hear when your child comes to you and says that they are unhappy with the current custody situation, especially if you are the custodial parent. When this happens, it is important that you remain as calm as possible and avoid lashing out at your child. Instead, listen to them, and try to get to the root of the issue. If you are in a good place with your child's other parent, you may wish to discuss this issue with them as well.
Seeking outside support can also be beneficial for families. Consider working with a therapist or family counselor. You can get individual counseling for your child, as well as group therapy for the whole family. Similarly, if the reason your child wants to change custody is because of a dispute, you may find mediation beneficial for the family before going to court. If you decide it is in your child’s best interest to change custody or visitation, speak with your lawyer before petitioning the courts. Your attorney can help you prepare for the modification process.