"Mommy Can I Live With Daddy?"

Children's Choice In California

At what age can my child decide which parent to live with?

In some states, there is a certain/minimum age at which a judge will consider a child’s wishes.  However, the California divorce law does not provide a specific age at which a child may choose which parent they wish to live with.

Assuming that both parents have decided to establish different households, the initial position is that determination of child custody is an adult matter and children should not dictate with which parent they will choose to live.  This would be a classic example of “the tail wagging the dog.”  However, in certain circumstances, a child’s opinion is given some weight when there appears to be a certain level of maturity which means they can’t be easily influenced by parental pressures.  There is clearly no definite age when a court will automatically consider a child’s opinion, so each case is considered individually depending on the age, sophistication of the child, and dispute presented by the parties. 

To be clear, children do not testify in court because it is not in their best interest to be involved in their parent’s custody dispute.  This can place a child in a precarious situation because a child may fear alienating a parent’s love or affection by being forced to “choose” one parent over another. 

This fear of alienating a parent’s love can also result in another difficult situation -- a child may tell both parents that he or she wants to live primarily with that parent – making it likely that both parents will present completely contradictory positions because their belief is based on what the child has expressed to them.

One solution that the State of California has established to give a child a “voice” in the courtroom, is the appointment of an attorney for the child.  This attorney, referred to as “Minor’s Counsel” represents only the best interests of the child and not any one parent.  Minor’s Counsel may be appointed at the request of either party, or on the court’s own motion, and requires a court order to do so.  Once appointed, that attorney will contact the minor child, interview him or her, conduct a further investigation, and present those facts relevant to determining the best interests of the minor child to the court at time of hearing, either orally or by a written report.  Additionally, at the discretion of Minor’s Counsel and with the consent of the child, Minor’s Counsel may choose to indicate the child’s wishes orally at the time of the hearing.  The Court would then consider this evidence in determining where a child should reside and what kind of parenting plan is appropriate.

Another option to consider for older children is to involve them in the free custody mediation services offered by the courts.  At the request of either parent, a court may order that a minor child participate in mediation.  In this way, a child can directly express her or his preferences in a safe environment, where hopefully both parents will listen to those expressed desires.

Notwithstanding the above, as parents, it is always best for you both to decide the best parenting plan for your children.  When all is said and done, your child (ren) will appreciate being left out of your custodial dispute.