Legal Question in Family Law in California

No. We get this question a lot.

The child can testify about his or her preferences, but it is up to the judge to determine what is in the best interest of the child. So it is afforded some weight, but it is not solely up to the child.

Mr. Roach is ALMOST right. There is a fairly new statute that provides kids 14 and up with a right to speak to the court about what they want, not 12 year-olds. Younger than 14 it is at the court's discretion whether to hear the child's wishes. He is entirely right that the child's wishes are only one consideration in the court's decision, and how much weight the court will give it depends on the child and the exact details of the situation presented to the court. So, for example, if both mom and dad can provide almost equally good homes, a bright, mature, articulate 12 year-old's opinion may be heard and could be the deciding factor, whereas a troubled 16 year old substance abuser who wants to go live with her unemployed ex-con stoner dad and his hooker girlfriend, instead of living with her strict, law abiding, employed mom, is probably not going to get her way no matter what she says to the court.

Since you are in San Diego County I will tell you what normally happens. If there is a request to modify the child custody order you will be sent to mediation. If there is a dispute concerning the wishes of the child the mediator will talk to the child. It is unlikely a judge would allow the child to testify in court. The court must consider the wishes of a child, regardless of age but must consider the age of the child in the amount of weight given to the child's wishes. You should have an attorney if you want to make the change.

The court also has the power to decline the child's participation in the decision making process if the court determines this approach is more suited to the child's best interests.