When parents divorce, child custody decisions can become a source of bitter conflict. While each parent might recognize the importance of working together to look after their children’s welfare and well-being, they may have strong disagreements about where the children should live, how much time they spend with each parent, and how important decisions will be made for them. This tension is likely to be heightened in move-away cases, where typical joint custody arrangements that balance parenting time between the parties is impossible.
In California, child custody decisions are meant to be guided, first and foremost, by what is in the best interests of the child. In situations where one parent wishes to move a considerable distance away and take the shared children with them, the courts determine if relocation is appropriate, considering many factors, including the child’s wishes regarding where and with whom they want to live.
Can their voice be the deciding factor? Here’s what to know about how a child’s preference affects custody in California and how it might influence a judge’s decision in a move-away case.
- Where Does a Child’s Preference Fit into the LaMusga Factors?
- How Old Does a Child Have to Be to Express an Opinion on Custody?
- How Can a Child Express Their Preference in Court?
- Frequently Asked Questions About LaMusga Factors
Unsure of how your child’s preference will influence a judge’s decision?
Where Does a Child’s Preference Fit into the LaMusga Factors?
In California, a parent seeking a court order that allows them to move long distance, out of state, or internationally with their children will be subject to scrutiny on a number of issues known as the LaMusga Factors (taken from the California Supreme Court decision on In re Marriage of LaMusga) to determine what is in the child’s best interest. These include not only the distance of the proposed move and the reason for it, but also the children’s relationship with both parents, the ability of the parents to communicate and cooperate effectively with one another, and even “the wishes of the children if they are mature enough for such an inquiry to be appropriate.”
Note that while a child’s preference is included in the list, it is not necessarily given priority over any of the other issues to be considered. The court will examine them all collectively and holistically to come to a decision on custody orders. In general, California law allows for a child’s wishes to be considered in matters of custody but does not require that a judge follow that preference if it would not be in their best interest.
How Old Does a Child Have to Be to Express an Opinion on Custody?
California Family Code § 3042 specifies, “[i]f 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.” The law establishes age 14 as a benchmark since teens are generally presumed to be old enough and mature enough by that age to have relevant, appropriate reasons for a preference on custody and an understanding of the implications of any changes.
Therefore, children of 14 and above are permitted to address the court regarding custody or visitation, unless the court determines that it is not in their best interests. However, in such cases, the court must state on the record the reasons for that finding.
By contrast, children younger than age 14 can also express their preference to the court on custody matters if the court determines that doing so is in their best interest. It is not assumed that a younger child lacks the capacity to have an informed opinion, but the court has greater discretion in considering it. The law also does not require a child to express a preference to the court.
Just because the child has an opinion doesn’t mean a judge is bound to follow it. For instance, children can be vulnerable to being pressured or manipulated by a parent to say they want to stay with them rather than the other parent. Or a child may prefer one parent over the other because they aren’t as strict or they give the child more expensive gifts. In such circumstances, a judge may give the opinion less weight or set it aside entirely.
How Can a Child Express Their Preference in Court?
The prospect of a child testifying in court may sound unrealistically daunting; fortunately, it’s not the only way a child can officially communicate their preferences. If a child does testify regarding their preference on custody or visitation, California’s family code states they should not do so in the presence of the parties (their parents) unless the court determines that having their parents there is in the child’s best interest and states their reasons for that on the record.
However, California Rules of Court 5.250 provides alternatives to testimony in open court, closed court, or judge’s chambers, including:
- The child’s participation in child custody mediation under Family Code § 3180;
- Appointment of a child custody evaluator or investigator under Family Code § 3110 or Evidence Code § 730;
- Admissible evidence provided by the parents, parties, or witnesses in the proceeding;
- Information provided by a child-custody-recommending counselor authorized to provide recommendations under Family Code § 3183(a); and
- Information provided by a child interview center or professional to avoid unnecessary multiple interviews.
In high-conflict divorces or in situations where more information is needed about what would be in the child’s best interests, the court may appoint a minor’s counsel—an attorney with specialized training and education who independently represents the child’s best interest in custody cases. This may be done on the recommendation of a parent, their attorney, or other parties with knowledge of the case, or the court can decide to appoint one without such a recommendation.
Experienced Family Law Representation for Move-Away Cases in Silicon Valley
If you’re unsure of how your child’s preference will influence a judge’s decision on a move-away case, or if you’re worried that your child’s voice is getting lost in the discussion over custody decisions, the expert family law attorneys at Hoover Krepelka can help. Our team has decades of experience with domestic and international relocation cases.
In addition, we offer representation by Silicon Valley’s top minor counsel attorneys, including Constance L. Carpenter and Patricia M. Zerbini, who will keep your child’s best interest front and center. A parent should not independently retain counsel for their child, but your experienced family law attorney at HK can guide you regarding asking the Court to appoint one. To schedule your consultation, fill out the form below.
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FAQs About Lamusga Factors
What are the LaMusga factors?
The LaMusga factors are guidelines California courts consider in child custody relocation cases, including the child’s stability, the distance of the move, and each parent’s relationship with the child.
At what age can a child express their preferences regarding custody?
In California, a child can express their custody preferences at age 14, though younger children may be heard if the court believes it’s in their best interest.
How much weight do California courts give to a child’s preference?
Courts consider the child’s age, maturity, and reasoning; older and more mature children’s preferences often carry more weight.
What is the process for a child to express their preference in court?
A child can express their preference through direct testimony, a court-appointed child custody evaluator, interviews with a mediator, or through Minors Council.
