At what age does a child have the capacity to have a say in determining their custody arrangement? Many individuals may feel that children cannot meaningfully consider their best interests until they reach their teenage years. Others may feel that their children are entitled to an opinion about which parent they spend the majority of their time with as soon as they are old enough to formulate and express opinions regarding a desired custody arrangement.

Alternatively, some parents may fall right in the middle and feel as if some “healthy” yet utterly difficult to define middle ground is warranted under these circumstances. The question then becomes at what age will the consideration of a child’s own individual preference ultimately result in the best interest of that child? 

It is abundantly clear that determining what the “best” child custody arrangement is in each set of circumstances is not an easy issue by any means. What truly equates to the “right” arrangement for each and every child inevitably varies from one child to the next.  Assessing which particular custody arrangement is best for each child is a factual inquiry that varies from one case to the next. Long story short, this is certainly not a one size fits all type of inquiry. 

What may be in the very best interest of each child is inextricably tied to each child’s lifestyle and needs. The constantly evolving applicable laws set forth by both the legislature and the common law system alike make it abundantly clear that such a determination is far from simple and straightforward. 

Thankfully, there are knowledgeable family law attorneys that are dedicated to understanding the dynamic and utterly confusing California laws surrounding child custody. Oceanside attorneys, Fischer & Van Thiel have made it their goal to dissect and truly understand the laws surrounding a child custody dispute from a very practical perspective.  

Case law is ultimately what dictates what all those confusing and long- winded child custody statutes actually mean in the “real world”. Understanding the judicial system’s current interpretation of the Family Code is the best way to work towards achieving a child custody arrangement that is legally sound, not to mention in the best interest of the child. While ironic, it is nevertheless an unavoidable reality that fully understanding the practical meaning behind the written law will require a family law professional to help you work towards having a custody order put into place that is truly in the best interest of your child. 

 

THE WRITTEN WORDS THAT GUIDE THE CALIFORNIA COURTS IN DETERMINING CUSTODY:

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According to Family Law Code 3020(a), a legal child custody determination must ultimately be consistent with the public policy of this state to look out for each child’s best interests. The statute explicitly states that the assessment of what encompasses a child’s best interest equates to a primary concern with what particular arrangement is best for a particular child’s  “health, safety, and welfare.” 

This statute like many in the family law arena seems to present more questions than answers. After all, who is to say what is best for each child’s health, safety, and welfare? Certainly, each parent will likely have differing opinions in this respect. Certainly, a thorough presentation and examination of the evidence will play an enormous role in ensuring that a judge orders a custody arrangement that is consistent with this overall goal. However, what could be better and more reliable than incorporating the child’s preference into a custody determination? 

Understandably, clearing defining a physical age that a child is capable of understanding what is and is not in his or her best interest is controversial to say the least. For instance, one child may feel that it is in their best interest to be with one particular spouse because this spouse allows them to skip school and eat ice cream for dinner every night. While this example is admittedly a bit extreme, it clearly demonstrates the fundamental underlying issue with determining at which age a child is truly capable of looking out for their interests. 

 

TODAY’S LAWS ON THE AGE THAT A CHILD IS ENTITLED TO EXPRESSING HIS OR HER INTEREST

Family Law Code 3020(c) instructs that under most circumstances, if a child is 14 years old, a judge must address and consider the child’s preference as to custody should the child wish to address the court. 

Under section (d), If the child is under the age of 14, the judge may consider the child’s custody preference if the court finds that addressing the court is in the child’s best interest as interpreted by the following factors:

(B)Whether the child is of sufficient age and capacity to understand the nature of testimony;

(C)Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court;

(D)Whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision making process; and

(E)Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so.

A CHANGE ON THE HORIZON: PREFERENCE MAY SOON BE PERMITTED IN A CUSTODY ARRANGEMENT BEFORE A CHILD REACHES TEENAGE YEARS

A new 2017 bill seeks to lower the age of a child who can legally express their opinion as to a custody arrangement. Namely, this bill, if enacted would lower the age of a child’s right to express their preferred time spent with each parent from the age of 14 to 10. Whether or not this bill taking effect would have a positive or negative impact on looking out for a child’s health, safety, and welfare is an enormous topic of debate. 

Proponents of the bill argue that no one knows better than the child what is truly best for his or her safety and welfare. Sometimes only the child truly knows and understands the existence or extent of any physical or mental abuse or other factors which may play an instrumental role in their “best interests”. 

Others stand by the opinion that a child is not yet capable of making such a determination. Even if they were so capable, it likely does a number on a child’s mental and emotional health to be placed “in the middle” of such a dispute and essentially have to chose one parent over the other.

Regardless of what your stance may be, should you find yourself battling for a custody arrangement, Fischer & Van Thiel are knowledgeable family law attorneys that want to help you work towards achieving a custody arrangement that is in the best interest of your child’s health, safety, and welfare.