California Family Code Section 3042 Gives Children a Voice of Preference But When Should the Judge Listen?

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Family Code section 3042 was enacted on January 1, 2012. It didn't change California law but sent a subtle message to family law judges - "start listening to children who are old and intelligent enough to state a preference."


Let's take a look at section 3042. It states that when a child is of "sufficient age and capacity" to reason and form an "intelligent preference" as to custody and visitation, the Court must give "due weight" to the child's wishes. If the child is 14 years or older, the family law judge must listen to the child unless the judge decides it is not in the child's best interest to do so. With a younger child, the Court can still listen if it first finds it is in the child's best interest to do so. 


Notice the difference? With a child of 14 or older, the default is to listen to the child. With a younger child, the court must first decide whether it is in the child's best interest to listen to him or her. The difference is subtle but important because once a child reaches the age of 14, the issue of preference may be taken more seriously.

Does any of this mean the family law judge must follow the child's preference? No. The Family Code does not mandate it. Nearly every aspect of California child custody law results in an evaluation of the child's best interest. "Best interest" has a broad definition but it generally means a child's health, safety, education and general welfare. In the case of a "preference", the Court will, at a minimum, look at the following factors:

 

1. Is the child's preference a voluntary one or is the child being "pressured" to state a preference?

2. Is the chid doing well under the current status quo custody and visitation arrangement?

3. Is the parent who is asking for custody and visitation "fit" to care for the child?


These and other "best interest" factors are at the heart of the family court's consideration and, because what is or is not in a child's best interest involves a lot of court "discretion", neither parent who walks into a custody case has any assurances the Court will agree with his or her position.


About the author: B. Robert Farzad is a
divorce attorney in Orange County, California. He is the president of Farzad & Mazarei, ALC. Nothing contained in this article is intended as legal advice. Every case is unique to its own facts.

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