Legal Question in Family Law in California
I have been divorced for three years. My ex has primary physical custody of our 11 and 8 year olds. At what age are they allowed to choose which parent they would prefer to have primary custody of them? To what degree is their choice taken into consideration? Does there have to be a change in circumstances in order for it to even be brought back to court or is the fact that they have reached a certain age enough?
1 Answer from Attorneys
They don't get to choose until they are 18. They have a legal right to be heard in court at 14. The law on this is based on Family Code section 3042:
3042. (a) If a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody or visitation,
the court shall consider, and give due weight to, the wishes of the
child in making an order granting or modifying custody or visitation.
(b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
a child witness so as to protect the best interests of the child.
(c) If the child is 14 years of age or older and wishes to address
the court regarding custody or visitation, the child shall be
permitted to do so, unless the court determines that doing so is not
in the child's best interests. In that case, the court shall state
its reasons for that finding on the record.
(d) Nothing in this section shall be interpreted to prevent a
child who is less than 14 years of age from addressing the court
regarding custody or visitation, if the court determines that is
appropriate pursuant to the child's best interests.
. . . .
As for change of circumstances, mere age alone is not enough, but over time and as kids grow up there are pretty much certain to be changes that justify revisiting physical custody. Transition from elementary to middle school is a common review point.